Herald Publishing Co. of Bellflower

National Labor Relations Board - Board Decisions

Sep 16, 1955

114 N.L.R.B. 71 (N.L.R.B. 1955)

4
HERALD PUBLISHING COMPANY OF BELLFLOWER 71
Herald Publishing Company of Bellflower and American News-
paper Guild , CIO. Case No. 21-CA-2044. September 16,1955-
DECISION AND ORDER
On March 29, 1955, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support of the exceptions.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate- Report, the Respondent's exceptions and brief, and the entire
record in the case, and adopts the Trial Examiner's findings, conclu-
sions, and recommendations as modified below.
For the reasons indicated in the Intermediate Report, 2 we agree
with the Trial Examiner that the Respondent's operations affect inter-
state commerce and that the Board has jurisdiction in the statutory
sense in this proceeding. The Trial Examiner was of the further opin-
ion, which we share, that the Respondent's operations fall within the
Board's current plan for the assertion of jurisdiction over newspaper
enterprises because the Respondent's gross'value of its newspaper busi-
ness amounted to at least $500,000 per annum and the Respondent sub-
scribed to an interstate news service and advertised nationally sold
automobiles, including Ford, Chevrolet, Studebaker, and Packard
cars.' Moreover, we rely on the additional fact that the Respondent
advertised many other products which, because they are commonly
'known to be nationally sold products, we officially notice to be nation-
ally sold products. Among these are household appliances, electric
shavers, canned vegetable and meat products, watches, and women's
wear, marketed by such well-known manufacturers as Radio Corpo-
ration of America, Bendix, General Electric, Sunbeam, Ronson,
Schick, Westinghouse, Elgin, Chrysler, Libby, Gerber, and Playtex.
In view of the foregoing, we find that the Board has jurisdiction and
1 The Respondent filed no specific exceptions to the Trial Examiner's findings that the
Respondent unlawfully discharged Raymond J. Ross and granted a wage increase to em-
ployees to deter union organization , as more fully set forth in the Intermediate Report.
Apart from the reasons therefor indicated in the Intermediate Report, which we regard
as adequate , we adopt the Trial Examiner 's findings , conclusions , and recommendations
as to Ross' discharge and the wage increase in view of the absence of exceptions thereto.
2 The Trial Examiner correctly reported that the Respondent' s annual gross income from
the publication of its newspaper exceeds $500 ,000, but that the evidence did not disclose
the extent of the excess We find, as stated in the Respondent's brief, that its gross rev-
enue for 1954 amounted to $1,714,377 68.
3 The Daily Press, inc., 110 NLRB 573.
114 NLRB No. 23.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it will effectuate the policies of the Act to assert jurisdiction in
this proceeding.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Herald Publish-
ing Company of Bellflower, Compton, California, its officers, agents,
successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Newspaper Guild, CIO,
or in any other labor organization, by discriminating in any manner
in regard to the hire or tenure of employment or any term or con-
dition of employment of any of its employees.
(b) Engaging or attempting to engage in surveillance of any meet-
ing of American Newspaper Guild, CIO, or any other labor organiza-
tion, which the Respondent believes or has reason to believe will be at-
tended by,any person in its employ; interrogating any employees con-
cerning their membership in, or activities on behalf of, American
Newspaper Guild, CIO, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation, of Section
8 (a) (1) of the Act; stating to employees that it will discharge any
employee because of his affiliation with, or activities on behalf of,
American Newspaper Guild, CIO, or any other labor organization,
or that any employee has been discharged because of such affiliation
or activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to join or assist Ameri-
can Newspaper Guild, CIO, to bargain collectively through represent-
atives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities, except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a), Offer to Sol London, Doris Farley, Raymond J. Ross, and
Gloria Hickey immediate and full reinstatement to their respective
former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges, and make each of the said
employees whole in the manner set forth in section V of the Inter-
mediate Report, entitled "The Remedy..',
HERALD PUBLISHING COMPANY OF BELLFLOWER - 73
(b) Post at its principal place of business in Compton, California,
and at each of its other places of business in Los Angeles County,
California, copies of the notice attached to the Intermediate Report
and marked "Appendix A."' Copies of such notice, to be furnished by
the Regional Director for the Twenty-first Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent, immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
4 This notice is hereby amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner ." In the event that this Order
is enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On July 21, 1954, American Newspaper Guild, CIO (also described herein as the
Guild), filed a charge with the National Labor Relations Board (also referred to
below as the Board) against the Respondent, Herald Publishing Company of Bell-
flower.' The Guild filed an amendment to the charge on August 19, 1954. Based
upon the charge, as amended, the General Counsel of the Board issued a complaint
on October 14, 1954, alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of the National Labor Relations Act,
as amended (61 Stat. 136-163), also referred to herein as the Act. Copies of the
charge, the amendment thereof, and the complaint have been duly served upon
the Respondent.
With respect to the claimed unfair labor practices, the complaint, as amended at
the hearing in this proceeding, alleges in substance that on various occasions during
a period beginning on or about July 1, 1954, the Respondent, in violation of Section
8 (a) (1) of the Act, engaged in conduct constituting interference with, restraint,
and coercion of its employees in the exercise of rights guaranteed to them by Section
7 of the Act; and that the Respondent, in violation of Section 8 (a) (1) and (3) of
the Act, discriminatorily discharged four employees, Sol London (on July 17, 1954),
Raymond J. Ross (on August 17, 1954), and Gloria Hickey and Doris Farley (both
on August 18, 1954), because the said employees had exercised rights guaranteed them
by the Act.
i The name of the Respondent is stated in the charge and in the complaint, as originally
issued, as Herald Publishing Company. The Respondent's correct name is Herald Publish-
ing Company of Bellflower. Upon the General Counsel's motion at the bearing in this
proceeding, the complaint was amended to reflect the Respondent's correct name. Point-
ing to Section 102.12 of the Board's Rules and Regulations, which requires that a charge
set forth the "full name" of the party charged, the Respondent took the position at the
hearing, in effect, that the misnomer is a bar to this proceeding. The view misconceives
the function-of a charge.' It is not a pleading, and "simply sets in motion the investiga-
tive machinery of the Board " N. L. R B. v. Waterfront Employers of Washington, et at.,
211 F.'2d 946 (C A. 9). For that purpose, precision in the charge is not essential
N. L. R B. v. Kingston Cake Co., 191 F. 2d 563, 567 (C. A. 3). Moreover, the Respondent
filed an answer addressed to the merits of the complaint, and it is thus evident that it has
been in no way prejudiced or, misled by the misnomer The Respondent's position lacks
merit See De Luxe Motor Stages, 93 NLRB 1425, enfd. 196 F. 2d 499 (C A. 6).
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent filed an answer which, as amended at the hearing, in effect denies
the commission of the alleged unfair labor practices attributed to it, and asserts in
substance that London "was discharged for unsatisfactory services," and that Ross,
Hickey, and Farley were terminated "solely for economy reasons."
Pursuant to notice duly served upon all parties, a hearing was held before me, as
duly designated Trial Examiner, at Los Angeles, California, on December 6, 7, 8, 9,
and 10, 1954. All parties were represented by counsel, participated in the hearing,
and were given a full opportunity to be heard, to examine, and cross-examine wit-
nesses, to adduce evidence, to submit oral argument, and to file briefs and proposed
findings of fact and conclusions of law. Of the various motions made at the hearing,
reference need be made here only to one, as the record adequately reflects the dis-
position of the others. Decision was reserved on a motion by the Respondent, after
the close of the evidence, to dismiss the complbint on the ground that the Board has
no jurisdiction over this proceeding, and that it would not effectuate the policies of
the Act to assert such jurisdiction. The motion is hereby denied for reasons set out
below. The General Counsel and the Respondent submitted oral argument after
the close of the evidence. No briefs have been filed.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. NATURE OF THE RESPONDENT' S BUSINESS ; JURISDICTION
The Respondent is a California corporation; maintains its principal place of busi-
ness in Compton, Los Angeles County, California; and is engaged in the business
of printing, publishing, distributing, and selling a newspaper known as the Herald
American. The newspaper, a semiweekly publication, is published each,Thursday
and Sunday. A weekly supplement to the paper, known as "Garden and Home
Magazine," is also published each Sunday. The Thursday issue appears in nine
editions. Seven editions are issued on Sunday. Each edition is associated or
identified with one or more communities in Los Angeles County. For example,
there are separate editions for the communities of North Long Beach, Compton, and
Bellflower, among others. The newspaper is printed in Compton where the Re-
spondent' operates two printing establishments for that purpose, but it also maintains
separate offices in various of the other communities where it stations such personnel
as advertising and editorial employees. The combined circulation of the Thursday
editions is approximately 142,000; the circulation of the Sunday issue is slightly
smaller. The Respondent sends no copies of its newspaper to any points outside the
State of California. Circulation of the paper is apparently confined to the Los
Angeles County communities for which the respective editions are named.
The record is lacking in specificity concerning the amount of the Respondent's
annual gross income, and what portions of the revenue are derived from advertising
and circulation, respectively. One may, however, spell out enough from the evidence
to determine whether the Board has jurisdiction and whether its assertion will ef-
fectuate the policies of the Act. The Respondent's annual gross income from the
publication of the newspaper exceeds $500,000 (how much in excess does not
appear). Although the record contains no figures for the amount of revenue derived
from advertising, it is fairly inferable from the evidence as a whole that the volume
of advertising is considerable, and that the newspaper's revenue from advertisements
accounts for a substantial portion of its gross income.2
The newspaper advertises a variety of products, including what one witness termed
"practically every make of popular cars." Automobile advertisements appear in
the Herald American every week, but the heaviest concentration of such advertising
occurs each year when the automobile manufacturers bring out their new models.
Some of the advertisements are placed by advertising agencies, and others by local
automobile dealers. The offices of the agencies which place the automobile adver-
The record reflects only two sources of income, advertising and circulation. Circula-
tion revenue may be roughly approximated. The newspaper sells for 10 cents a copy.
About 30 to 40 percent of the copies distributed are paid for. Payment at 10 cents per
copy for 30 percent of 142,000 copies issued 104 times in a year would yield annual gross
receipts of $443,040 for the given year. As the evidence does not establish by how much
the annual gross income exceeds $500,000, it is impossible to determine from the record
what proportion of the revenue is derived from advertising. One may safely conclude,
however, from the figures given that the advertising income is substantial . Other features
of the record which support that conclusion will appear later.
HERALD PUBLISHING COMPANY OF BELLFLOWER 75
tisements are all located in California.3 Copy for automobile advertising, such as
mats used to reproduce pictures of automobiles, is supplied to the newspaper by
dealers and advertising agencies, as the case may be. The record does not establish
whether any of the copy originates outside the State of California. When an agency
places the advertisement, the newspaper usually secures approval of the copy from
a local dealer because the latter pays for the advertisement (and, perhaps, although
the record is not clear on the point, because the dealer's name appears in the ad-
vertising). The evidence, however, does not establish that the dealers are actually
the agencies' principals, nor can it be determined in the state of the record whether
the authority for the agencies' activities comes either from automobile manufacturers
or distributors?
The Herald American is not a member of any interstate news agency, but it
subscribes to, and receives in the mail each week, a newsletter issued by the United
Press which, it is common knowledge, is engaged in the distribution of news to
newspapers throughout the United States. The weekly letters contain "news from
various parts of the country." C. S. Smith, president of the Respondent and
publisher of the-Herald American, denied that the newspaper has actually used
the newsletters, and he explained the subscription with testimony that the paper
had at one time used the wire service of the news agency; that the service was
discontinued in or about 1946; and that the Respondent subscribes to the newsletters
in order to retain some right (not otherwise elaborated in the record) to resume
the wire service. Smith also asserted that the newspaper does not publish "anything
but local news." However, the "Garden and Home Magazine" supplement to the
issue of September 12, 1954, contains a substantial number of items dealing with
events that occurred, or places that are located, outside the State of California.
The initials U. P. are appended to the bottom of a substantial number of such items
on pages 15 and 19 of the supplement (General Counsel's Exhibit No. 3). The
issue for October 21, 1954, contains an article entitled "College Coeds Discuss
Campus Fashion." The item is datelined Berkeley, California, and Austin, Texas,
with the legend at the bottom: "Written for U. P. by Joyce Williams, University of
California, and Patricia Strum, University of Texas."
Smith was interrogated about the source of some of the articles in question, and
notwithstanding his prior assertion that the paper publishes only "local news," he
speculated that one article dealing with tourist information, attributed to U. P., and
datelined Ottawa "could be out of canned information which is sent to us by some
travel bureau." He endeavored to account for the initials with the statement that
"that [the item and the initials] could be out of any daily newspaper." With respect
to another item attributed to U. P., and captioned "Make Low Bid Pocket Papers
on Ohio Town," he testified that the source of the story would be a "rank guess"
on his part. When asked whether it would be "consistent" for a newspaper to credit
"something to U. P. if it comes from another source," Smith gave the somewhat
unresponsive reply: "This is a magazine [the supplement] which is headed by a
girl who has practically carte blanche on it. She doesn't have service [sic] to
these various [news] letters and wherever she picks the stuff, we have let her go on
it because she gets it locally or everything is sent to her by some local agent. There
is no policy on it except interesting reading."
Smith's testimony as to where the U. P. stories "could" have originated is
obviously speculative, and I am unable to accord any probative weight either to
such speculation or the assertion that an employee with "carte blanche" authority
secured the stories "locally" or from "some local agent" (not otherwise identified).
Similarly, I am unable to give any operative weight to his claim in effect that the
"girl who has practically carte blanche" in the preparation of the magazine has
not used the United Press newsletters. Sol London, one of the dischargees involved
in this proceeding, testified that he was stationed at the newspaper's Compton head-
quarters prior to July 1953; that while employed there he used to open the mail;
that "material from United Press" came to his desk in the mail; that he asked either
Jack Cleland, city editor, or W. W. Butler, managing editor, what disposition should
be made of the material, and was instructed by one or the other to turn it over to
8It is not unlikely, and the record suggests, that at least one or more of the agencies
have offices in other States, but the evidence on the subject has insufficient substance to
warrant a finding in the premises.
' There is testimony in the record that advertisements placed by the dealers are financed
from funds "allotted" to them. The sources of the allotments, whether from manufac-
turers or distributors, are not identified in the record. The testimony in question is lack-
ing in specificity and concrete detail, and may be of hearsay origin. I base no finding
on it.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Home and Garden." 5 While London stated that he could not recall whether it
was Cleland or Butler who gave him that instruction, it may be noted that the
record contains no denial by either Cleland (who did not testify) or Butler (who
did) that the instruction described by London was given to him. Moreover, various
facets of Smith's testimony substantially detract from the force of his claim that
the person in charge of "Home and Garden Magazine" has not used the newsletters.
In the first place, as already noted, Smith was unable to give the actual source of any
of the stories credited to U. P. Second, he operates other enterprises, and he testi-
fied at more than one point that prior to September 1, 1954, his participation in
the active management of the newspaper was "on a very small part-time basis."
According to his testimony, he is now active as general manager, but he has no
"regular office" at the headquarters of the newspaper in Compton and transacts
most of his business at his home. Thus, it may be asked, how may one conclude
from Smith's testimony that the person in charge of the magazine had no access to
the newsletters and did not use them? A negative answer is required not only
by the features of his evidence pointed out above but by other aspects of his
testimony. When questioned about recent news stories (appearing- after he assumed
the title of general manager) pertaining to new automobile models, he replied that
he did not have "the slightest idea" as to the source of the articles or as to the identity
of the individual in his organization who "would know where these news items
come from." He explained his lack of personal knowledge with the statement, "I
have one hundred and eighty people in the organization." In sum, it seems to me
that this explanation by Smith applies with equal force to his claim that the individual
in charge of the "Home and Garden" supplement has not used the United Press
newsletters in preparing the news items attributed to U. P., initials which obviously
are abbreviations for United Press.
The fact that the newsletters are not in evidence does not preclude an inference
that the U. P. stories came from the newsletters. The basic facts are that the Re-
spondent subscribes to United Press weekly newsletters which contain "news from
various parts of the country"; publishes news stories concerning events occurring,
and places located, outside California; and attributes items of that nature to U. P.
or, in other words, to United Press, as the source. Moreover, London's testimony
described above is uncontroverted and contributes weight to the conclusion that the
newsletters have been used as the source of stories in the supplement. In short,
there is evidence which reasonably warrants an inference that the stories credited
to United Press came from the newsletters. To escape such an inference, it seems
to me that some duty devolved upon the Respondent to go forward with probative
evidence negating it, particularly as information shedding light on the matter is
within its special knowledge. The Respondent produced no such evidence, nor has
it explained its failure to do so. Certainly, Smith's speculations as to the possible
sources of the U. P. stories, his inaccurate assertion that the Herald American
prints only "local news," and his generalization that the person in charge of the
supplement "doesn't have service to these letters," do not probatively negate the
inference. The weight of the evidence supporting the inference is enhanced by the
failure of the Respondent to present any probative evidence, peculiarly within its
knowledge, as to the source of the U. P. items. See N. L. R. B. v. Ohio Calcium
Co., 133 F. 2d 721 (C. A. 6). Accordingly, I find that such news items were fur-
nished to the Respondent by United Press and were based upon, or taken from,
one or another of that organization's weekly newsletters .6
In August 1954 the Respondent purchased publication rights to three cartoon fea-
tures, each of which is issued by a different syndicate. Two of the syndicates are
located in New York and the third in Chicago. The publication rights were pur-
chased from "a Glendale, California broker," who in turn ordered the features for
the Herald American from the syndicates. Publication of cartoons received from
one or the other of the syndicates was begun by the Respondent on August 25, 1954,
and discontinued on December 8, 1954, while the hearing in this proceeding was
s Unlike Butler Cleland, as will appear, is not a supervisor within the meaning of the
Act. However, when London was hired, Butler told him that he "would be working under"
Cleland, and, while London was stationed in Compton, Cleland exercised some authority
over him from time to time At the least. Cleland was vested with apparent authority
over London in the Compton office. Therefore, London's description of an instruction from
Cleland regarding the disposition of the United Press material is competent evidence.
G The Respondent also subscribes to and receives from United Press another weekly
newsletter which deals with events in Sacramento California's State capital Smith de-
nied that the newpsaper uses this letter, and there is no evidence to the contrary. Juris-
dictional findings made below are not based on the Sacramento newsletters.
HERALD PUBLISHING COMPANY OF BELLFLOWER 77
in progress . The Herald American customarily used one or another of the features
as "filler" material in 1 or 2 of the community editions of each issue?
The Respondent contends in effect that its operations do not affect interstate
commerce, and that the Board is thus without jurisdiction over this proceeding. An
alternative contention is that the assertion of jurisdiction, if the Board has it, would
not effectuate the policies of the Act. The Board has recently adopted criteria (to
be described later) by which it intends to be governed in its assertion of jurisdic-
tion over newspapers. It may be noted' that the alleged unfair labor practices at-
tributed to the Respondent antedated this expression of Board policy. For that
reason, as well as the fact that the relevant criteria are of recent origin, I think it
appropriate to refer not only to the applicable current policies but to some aspects
of criteria in effect prior thereto.
In 1950, in a series of decisions, the Board announced certain criteria by which
it would be governed in its assertion of jurisdiction. The criteria, some but not
all prescribing dollar volume standards, were respectively applicable to different
situations or types of enterprises and need not be described in detail.8 It need only
be noted that in one of the policy decisions the Board announced that it would con-
tinue to take jurisdiction "over instrumentalities and channels of interstate .
commerce" (WBSR, Inc., 91 NLRB 630, involving a radio station); and that shortly
thereafter this standard was applied to a newspaper because of "its membership in
interstate news services" (Press, Incorporated, 91 NLRB 1360). As evidenced by
the Press decision, the assertion of jurisdiction over newspapers after the announce-
ment of the 1950 policy standards (and, as will appear, prior to 1954) was based
not upon standards particularly applicable to newspapers, as such, but upon find-
ings that criteria announced in one or another of the 1950 decisions were applicable .9
The issues for October 14 and December 2, 1954, are typical of the use of the cartoons.
On the first date, of the 9 editions, only the Downey-Riviera and Paramount-Hollydale
editions contained cartoons, the latter publishing 2. The December 2 issue published two
cartoons, both appearing only in the Norwalk community edition The fact that the car-
toons were used as "filler" is immaterial. The point to bear in mind is that they were
used frequently during the period of the subscription
9 For the criteria see* WBSR, Inc., 91 NLRB 630; W. C King d/b/a Local Transit
Lines, 91 NLRB 623; The Boiden Company, Southern Division, 91 NLRB 628, Stanislaus
Implement and Hardware Company, Limited, 91 NLRB 618; Hollow Tree Lumber Com-
pany, 91 NLRB 635; Federal Daii y Co, Inc, 91 NLRB 638; Dorn's House of Miracles,
Inc. 91 NLRB 632; The Rutledge Paper Products, Inc., 91 NLRB 625; Westport Moving
& Storage Co., 91 NLRB 902
9In the recent case of The Daily Press, Incorporated, 110 NLRB 573, the Board appears
to hays assumed that in 1950 it adopted criteria specially applicable to newspapers, as
such. That case, citing Press, Incorporated, supra, and apparently relying on it, con-
tains the following statement • "Among the standards adopted in 1950 was the so-called
'newspaper' standard Pursuant to this standard, the Board asserted jurisdiction over
all newspaper companies which bold membership in or subscribe to interstate news serv-
ices , or publish nationally syndicated features, or advertise nationally sold prod-
ucts .. [Emphasis supplied ] It may be respectfully pointed out the 1950 Press
decision did not establish policy standards in quite those terms. Although the Board
made commerce findings in the Press case based, in part, on the newspaper's advertising
and its publication of syndicated features, a careful reading of the decision requires the
conclusion that the governing factor for the assertion of jurisdiction was not a policy
standard particularly applicable to newspapers, as such. For its basic holding in the
Press case that the assertion of jurisdiction would effectuate the policies of the Act, the
Board, citing and applying a case involving a radio station (WBSR, Inc., 91 NLRB 630),
invoked its previously announced policy of taking jurisdiction over instrumentalities or
channels of interstate commerce, pointing out that the newspaper involved was such an
instrumentality or channel because of "its membership in interstate news services." More-
over, that advertising of "nationally sold products" was not of itself a criterion (before
1954) for the assertion of jurisdiction is made manifest by Wave Publications, Inc., 106
NLRB 1064. There the Board declined to assert jurisdiction, although finding that the
newspaper advertised "national products" and received "syndicated cartoons" from out-
side the State. In taking that position, the Board pointed out in some detail that the
newspaper met none of the dollar volume or other criteria announced in 1950, thus imply-'
ing that at the time of the Wave decision there was no separate "'newspaper ' standard'
and that the assertion of jurisdiction over newspapers turned on whether they met any
of the standards announced in the 1950 policy decisions. To the same general effect, see,
also, Mutual Newspaper Publishing Company, et al., 107 NLRB 642, and J. Weiss Printers,
92 NLRB 993.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Wave Publications, Inc., 106 NLRB 1064, the Board had occasion to pass oni
the applicability of the 1950 standards to a California newspaper of a type somewhat
-similar to the Herald American. Like the latter, the publication in the Wave case
had an annual gross income in excess of $500,000, much of it derived from ad-
vertising revenue; held no membership in "any interstate wire service"; subscribed
to "syndicated cartoons" which were sent to it from points outside California; and,
among various types of advertising, carried advertisements of "national products"
placed both by advertising agencies and "local merchants." Unlike the evidence
in this proceeding, the record in the Wave case establishes concretely that advertise-
ments of "national products" were placed by "national advertising agencies located,
outside California"; and that "local merchants" who placed advertisements of "na-
tional products" were "reimbursed, in part, for the expense involved in advertising
the national product[s], by the national manufacturer." Also, unlike this proceed-
ing, the record in the Wave case contained concrete evidence of the value of goods
or services purchased by the employer outside California. The Board found that
for a given annual period, the publication "purchased materials and supplies valued
at $225,000, of which approximately 70 percent was shipped directly to the Com-
pany from outside California"; and that "in addition, the Company paid out about
$3,000 annually for syndicated cartoons, columns, and advertising mat services dis-
tributed from outside California." The Board held that, although it has jurisdiction,
it would not assert it because the facts did not establish "that the Company's oper-
ations meet any of the announced requirements for the assertion of jurisdiction." lo,
The Respondent relies upon the Wave decision for support of its position. Al-
though the commerce facts relating to advertising and syndicated features afforded'
a stranger basis for the assertion of jurisdiction in the Wave case than do comparable
facts in this proceeding, it may be noted that the newspaper involved in the Wave
decision, unlike the Herald American, did not subscribe to an interstate news service.
In any' event, for reasons that will appear the Wave decision is not decisive of the
jurisdictional issues presented here.1'
In 1954, the Board, in a series of decisions, announced new criteria for the asser-
tion of jurisdiction. In the main, these were revisions of the preexisting policies.
With one exception, detailed reference need not be made to the new policy de-
cisions,12 for only one of them is pertinent here. The case in question is The Daily
Press, Incorporated, 110 NLRB 573. There the Board announced ". . . that in
future cases the Board will assert jurisdiction over newspaper companies which
hold membership in or subscribe to interstate news services, or publish nationally
syndicated features, or advertise nationally sold products, if the gross value of the
business of the particular enterprise involved amounts to $500,000 or more per
annum." [Emphasis supplied.] Several features of the quoted language may be
noted. First, apart from the monetary standard, the other criteria are stated in
the disjunctive. Thus, for example, a newspaper with a gross annual income of at
least $500,000, meets the standards if it advertises "nationally sold products" whether
or not it also holds membership in or subscribes to interstate news services, or pub-
lishes "nationally syndicate$ features." Second, the assertion of jurisdiction is not
conditioned upon any dollar volume of advertising income or of payments for
nationally syndicated features, nor upon the regularity or frequency with which such
features are used. Third, the application of the advertising criterion does not hinge
upon the location of the advertiser or the source of the advertising. In other words,
the criterion is applicable irrespective of whether the advertiser is the producer of
the "nationally sold products," an advertising agency, or a "local merchant," or
whether the person or firm placing the advertisement is located in the same State
as the newspaper. The advertising standard requires only that the commodities
advertised be "nationally sold products." Finally, it is evident that although The
Daily Press decision did not expressly overrule the Wave case, the policy announce-
10 The Board's holding in the Wave case should be distinguished from a prior decertifi-
cation proceeding involving the same employer, reported at 90 NLRB 274. There the
Board asserted jurisdiction , but in its second decision , the Board pointed out that its
earlier decision antedated the adoption of the 1950 criteria.
11 For the same reasons, Mutual Newspaper Publishvng Company, et al., 107 NLRB 642,
and J. Weiss Printers, 92 NLRB 993 , both cited by the Respondent , are not controlling.
v For announcements of new criteria see : Breeding Transfer Company, 110 NLRB 493;
The Greenwich Gas Company and Fuels , Incorporated, 110 NLRB 564; Hogue and Knott
Supermarkets, 110 NLRB 543; McKinney Avenue Realty Company (City National Bank),
110 NLRB 547; The Daily Press, Incorporated , 110 NLRB 573; Maytag Aircraft Corp., 110
NLRB 594; Insulation Contractors of Southern California , Inc., et al, 110 NLRB 688;
Wilson - Oldsmobile, 110 NLRB 534; Jonesboro Grain Drying Cooperative, 110 NLRB 481.
HERALD PUBLISHING COMPANY OF BELLFLOWER 79
ment in the former supersedes the holding of the Wave decision and must be held,
by implication, to overrule the holding relating to advertising of what the Board in
the Wave case termed "national products" (a phrase which apparently means the
same as the term "nationally sold products" used in The Daily Press decision). It
seems clear that had the standards announced in The Daily Press case been in effect
at the time of the Wave decision, the Board would have concluded in the latter case
that the assertion of jurisdiction would effectuate the policies of the Act, if for no
other reason than that the newspaper met the monetary and advertising criteria of The
Daily Press case.
Applying the criteria of The Daily Press case to the evidence in this proceeding, it
may be noted initially that the Respondent's annual gross income meets the monetary
standard. The only question is whether any one of the other criteria is met. On that
score, the subscription to the United Press weekly newsletters "containing news from
various parts of the country" is of itself a sufficient basis for the assertion of juris-
diction.13 But that is not the only ground established by the evidence. The Herald
American advertises many types of commodities, but, with one exception, it is un-
necessary to consider which of these are "nationally sold products." 14 Whether any
other types of products mentioned in the record qualify for the term, the controlling
facts are that the advertisements include those of "practically every make of popular
cars," and that such automobiles are, without a doubt, "nationally sold products." 15
As already noted, evidence that the advertising of such products comes from, or is
financed by, sources without the State is not a precondition of the application of the
standard. Thus the question of jurisdiction is unaffected by the fact that the auto-
mobile advertisements are placed by local dealers or advertising agencies located
within the State (although it may be noted that Ralph J. Brewer, formerly general
manager and now vice president of the Respondent, testified that agencies "perhaps"
act "for the manufacturer," and in other instances, "for the local dealers association").
The evidence does not establish the amount of income derived by the Respondent
from automobile advertising, nor the volume of the advertisements, but the absence
of such evidence does not affect the assertion of jurisdiction here, for the applicable
criterion requires no such precision in proof. Brewer testified that the newspaper
receives automobile advertising from one agency or another every week; that such
advertising is heaviest each year at the time when the new automobile models are
introduced; and that "we have been very heavy recently in that type of advertising."
He also stated that new models were being introduced at the time of the hearing, and
indicated that "a lot of money" was being spent for their advertisement. From such
testimony, the conclusion is unavoidable that a substantial, even though unspecified,
portion of the newspaper's advertising volume and revenue is derived from advertise-
ments of "nationally sold products." Thus the Herald American meets the advertis-
ing standard announced in The Daily Press case.
13 The evidence does not establish from what location the newsletters are mailed, but
that is immaterial
1' As this may be one of the earlier cases involving the new newspaper criteria to come
before the Board, I take the liberty to set out some questions which the advertising stand-
ard suggests, so that the Board may address itself to the questions, if it deems some clari-
fication of the standard to be appropriate. To be considered as "nationally sold products"
must the goods be sold throughout the Nation, or is it enough that they are sold in a sub-
stantial number of States? To what extent may one infer that goods are sold "nation-
ally" from the fact that they are so-called standard brands. If such an inference may be
drawn, what products may be regarded as standard brands? What products are so well
known to the American public that one may take judicial notice that they are "nationally
sold," and how extensive must such knowledge be before the doctrine of judicial notice
becomes applicable? These are not idle questions, for at least some of them are suggested
by evidence the General Counsel presented in this proceeding He appears to assume, and
to seek a finding, that various commodities such as Cinch cakemix, Burgermeister beer,
Luzianne coffee, Norway sardines, Hills Brothers coffee, Playtex brassieres, and Lucky
Lager beer, all advertised in the Herald American, are "nationally sold products" even
though no evidence was adduced that they are sold "nationally." Perhaps one may take
judicial notice that one or more of these products are sold "nationally." I find it unneces-
sary to do so, nor to make any findings concerning any of the enumerated products, in view
of the conclusion reached herein with respect to the automobile advertising
11 It is common knowledge that what are termed in the testimony as "popular cars" (for
example, Chevrolets, Fords, and Packards) are sold throughout the United States. Thus,
I take judicial notice that these are "nationally sold products." Cf. N. L. R B. v. M. L.
Townsend, 185 F. 2d 378 (C. A. 9), cert. denied 341 U. S. 909, N. L R B. v Howell Chev-
rolet Co, 204 F 2d 79 (C. A. 9), affd. 346 U. S. 482
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning to the cartoon features, one may exclude them from consideration and,
on the basis of facts meeting the other criteria, still emerge with the conclusion
that the Respondent's operations affect interstate commerce and that the assertion
of jurisdiction will effectuate the policies of the Act. However, as the parties dealt
with the cartoons at the hearing as relevant to the question of jurisdiction, findings
relating to the syndicated features are appropriate.
The Respondent received the cartoons published between August 25 and December
8, 1954, from sourced outside the State, and by reason of that fact was, during the
period in question, engaged in interstate commerce, notwithstanding the circumstance
that the purchase of the publication rights was made either from or through a
broker in California.18 A question arises, however, whether the evidence establishes
that the cartoons are "nationally syndicated features." Only one of the cartoon
features published by the Herald American is clearly identified. It bears the name
"Angel." There is no evidence that it is published in any other newspaper. There
is also no basis for judicial notice of such publication. This applies with even
greater force to the other two features, for these are not even identified by name in,
the record.
From the nature of the evidence the General Counsel adduced, even if not from•
any explicit statement made by him, I gather that his position is that a feature is
syndicated "nationally" if it is distributed by a syndicate of national scope, even if
the feature itself is not distributed "nationally." There may be good reason for
grounding the assertion of jurisdiction over a newspaper upon such a theory, but
a literal reading of the criterion does not support such a construction. I read
the standard embodied in the phrase "nationally syndicated features" to mean that
the "features" must be distributed "nationally," and not that there need only be
a showing that they are distributed by a syndicate operating "nationally," however
limited the distribution of the particular "features" may be. Thus I hold that the
evidence in this proceeding does not establish that the cartoons published in the
Herald American are "nationally syndicated features." 17
With respect to the jurisdictional issue, one additional matter requires comment,
and that is whether the date (October 26, 1954) of The Daily Press decision pre-
cludes the application of the criteria announced therein to a case involving claimed
unfair labor practices alleged to have occurred prior to the announcement. There
have been cases where the Board declined to assert jurisdiction over an employer
charged with unfair labor practices allegedly committed before the announcement of
applicable criteria. But these were situations where the employer was involved
in a prior proceeding in which a position had been taken by the Board, or ex-
pressed by one of its representatives, to the effect that jurisdiction would not be
asserted on the basis of policies then in effect.18 This is not such a case. Nor
'"The fact that the publication of cartoons was discontinued during the hearing does
not affect the Board's jurisdiction. Nor is it material that the publication began after
the discharges and other conduct alleged in the complaint as unfair labor practices, for
jurisdiction is not conditioned upon a coincidence in time between the commerce facts and
the alleged unfair labor practices, but is based upon the "over-all operations of the em-
ployer" (Paul W. Speer, Inc, 94 NLRB 317).
17 It was stipulated at the hearing that the three cartoon features were ordered, respec-
tively, from Harry Cook Syndicate (also known as Bell Syndicate), of New York; the
Chicago Sun Times, of Chicago ; and McNaught Syndicate, of New York. Quite apart
from my interpretation of the criterion, as set out above, it may be noted that the evidence
bearing on the scope of the operations of the three syndicates is scant. "Angel" Is at-
tributed to none of the three in the evidence but to an organization named Field Enter-
prise, Inc., which also supplies features to the Chicago Sun Times, a newspaper. It may
be that Field Enterprise, Inc., and the Chicago Sun Times are one and the same, but the
evidence does not establish that fact The General Counsel presented no evidence that
the Chicago Sun Times and McNaught Syndicate have distributed features to any news-
paper other than the Herald American. Whatever moral conviction one may have about
the matter, the fact-finder may not substitute mere opinion for proof. There is evidence
that the Herald American published two Bell Syndicate cartoons on September 16, 1954,
and no proof that it did so on any other day. The only evidence of publication in any
other paper of Bell Syndicate features consists of proof that two cartoons (not identified
by name in the record) attributed to that concern appeared in a New York newspaper on
November 30, 1954
1Yellow Cab Co. of California, 93 NLRB 766; Screw Machine Products Co., 94 NLRB
1609; 4lmeida Bus Service, 99 NLRB 498; Tom Thumb Stores, Inc., 95 NLRB 57. The
Screw Machine case left open the question whether a complaint would be dismissed "solely
because the alleged unfair labor practices occurred at a time when the Board would not
have asserted jurisdiction over the particular employer involved."
HERALD PUBLISHING COMPANY OF BELLFLOWER 81
does the holding in the Wave decision preclude the assertion of jurisdiction. To
be sure, the Board declined to assert jurisdiction there on the basis of advertisements
of "national products." But assuming, without agreeing, that the advertising criterion
should not be applied to this proceeding, there is still a vital distinction between
the newspaper in the Wave case and the Herald American.19 Unlike the former,
the Respondent subscribes to an interstate news service and publishes news supplied
to it by the agency. Such a subscription is clearly analogous to "membership in
interstate news services," on the basis of which the Board held in the Press case in
1950 that the policies of the Act would be effectuated by the assertion of jurisdiction,
grounding the holding on the fact that such membership constituted a newspaper an
instrumentality or channel of interstate commerce. I think that one can hold with
equal logic that subscription to and use of newsletters of an interstate news agency
such as United Press constitutes the subscribing publication an instrumentality or
channel of interstate commerce.20 It is thus evident that at the times when it is
alleged unfair labor practices were committed, the Respondent's operations met
a standard prescribed by the Board for the assertion of jurisdiction?' Couched in
different terms for specific application to newspapers, that standard has been in effect
made part of the current criteria announced in The Daily Press case.
Viewing the evidence as a whole, I find that the Respondent's operations affect
interstate commerce; that the Board has jurisdiction of this proceeding; and that the
assertion of jurisdiction will effectuate the policies of the Act.
H. THE LABOR ORGANIZATION INVOLVED
American Newspaper Guild, CIO, admits persons employed by the Respondent to
membership and is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent employs approximately 180 persons. These are distributed
among the various establishments maintained by the Respondent, and include cash-
iers, editorial employees, PBX (switchboard) operators, classified advertising per-
sonnel, and advertising salesmen. (The newspaper is printed by mechanical de-
partment employees. They are not involved in the allegations of unfair labor
practices.)
As stated earlier, C. S. Smith is president of the Respondent and publisher of the
newspaper. He has complete control over its policies and operations. Ralph J.
Brewer was general manager of the newspaper for many years prior to September
1954, and, in that capacity, subject to Smith's authority, exercised general' supervision
over the newspaper's affairs. Because of ill health, Brewer relinquished the post of
general manager in September. In that month he was made vice president of the
Respondent, and Smith assumed the title and role of general manager.
Other supervisors function on a departmental or otherwise specialized basis. Thus
supervision over editorial personnel is vested in W. W. Butler who holds the title
of managing editor. He has, and exercises, authority to hire and discharge editorial
personnel. Direction of the newspaper's classified advertising is vested in Leonard
Lugoff. Lugoff supervises the work of employees in his department, and has author-
ity to hire and discharge classified advertising personnel. Another departmental
supervisor is named Louis M. Murray. He has the title of sales manager and func-
tions as "head salesman ." 22 Murray is vested with, and exercises, authority to make
recommendations for the hiring and discharge of sales personnel. Smith testified
19 In passing, it may be noted that no claim is advanced here, nor is there any evidence,
that the Respondent has in any way been misled by, the Wave decision or by any of the
other cases it cites. It is palpably not the Respondent's position that it engaged in con-
duct alleged to be unfair labor practices because it assumed, on the basis of the Wave or
any other decision, that the Board would not assert jurisdiction.
20 The concluding paragraph of the separate opinion of Board Members Murdock and
Peterson in The Dally Press case suggests a similar view. With respect to such a posi-
tion, the majority opinion in the case is not to the contrary.
21 For this reason alone, without regard to other factors, N. L. R. H. v. Guy F. Atkinson
Company, 195 F. 2d 141 (C. A. 9), is distinguishable.
22 Smith initially described Murray's title as "salesman " He later referred to Murray
as "head salesman," but asserted that "he isn't the sales manager though " The fact is
that Murray's name is listed on the Respondent's printed letterhead with the title of
"sales manager" (see General Counsel's Exhibit No. 1-J).
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at one point that on some occasions he accepted Murray's recommendations, and
rejected them on others . However, the fact that Murray's recommendations carry
particular weight is evidenced by Smith 's later testimony that he has found Murray
to be a "very good judge of people" and that ' he has approved "practically everyone
that he [Murray ] has wanted to employ when he had vacancies."
Smith , Butler, Brewer , Murray, and Lugoff are, and have been at all times ma-
terial to this proceeding , supervisors within the meaning of the Act.
The General Counsel contends that two employees , Robert Clark and Jack Cleland,
were, during relevant periods , supervisors within the purview of the Act; and that
for that reason certain statements made by these individuals are imputable to the
Respondent . The Respondent took the position at the hearing that Clark and Cleland
have no such supervisory status. Although both are still in the Respondent 's employ,
neither was called as a witness.
Clark is stationed in the newpaper 's Lakewood office, and has the title of general
manager of the Lakewood -Los Altos edition of the Herald American . In addition
to Clark, there are four other employees stationed in the Lakewood office. These
consist of two sales people, a "circulation man," and a classified advertising employee.
There is observable in Smith 's testimony an effort to water down the facts per-
taining to Clark's status in order to negate an inference that the latter was a super-
visor- during the period of alleged unfair labor practices . The way Smith put it at
one point, Clark "calls himself the general manager of the Lakewood Herald Ameri-
can." [Emphasis supplied.] But later Smith testified that Clark "was elected a
member of the Chamber of Commerce out there so we gave him a higher sounding
title." [Emphasis supplied. ] Moreover , that Clark's title is not merely self-imposed
is suggested by the fact that the masthead of the Lakewood -Los Altos edition for Oc-
tober 21 , 1954, lists Clark as "general manager." Smith attempted to minimize that
with the assertion that "there is a line between Mr. Butler and Clark" ( in the list of
names in the masthead ). However, the masthead for the edition of September 16,
1954, which is somewhat different in composition from the October 21 edition, list-
ing Clark as "local manager," contains no line separating any of the names. As to
that, Smith offered the vague statement that "that was the line up [presumably the
names on the masthead] at that time but it changed after that," and that "Mr.
Brewer was on vacation and he had just taken off." The suggestion is not made
here that Clark's title is decisive of his status or that the presence or absence of a
line between names listed in the masthead is significant . ( It was Smith who sought
to make a significant point of the line.) The features of Smith 's testimony, set out
above, are mentioned because they reflect on Smith 's credibility as a witness. They
are reminiscent of his assertion , contrary to the documentary facts, that the news-
paper does'not publish "anything but local news," and his claim, not important of
itself but symptomatic of a pattern in his testimony , that Murray "isn't the sales
manager," although the Respondent 's letterhead lists that title for Murray.
According to Smith , Clark was "manager of the Lakewood Herald American" be-
fore he was given the title of general manager about 3 weeks before the hearing.
While ."manager ," Smith testified, Clark "had no authority ever to watch their work"
(the work of the other four employees ). If that is so, then one may ask why Clark
had the title of "manager ." Be that as it may, at a later point, he stated that before
Clark was made general manager, the latter had the responsibility of directing the
two sales employees in the Lakewood office to perform given functions. Smith vol-
unteered , however , that Clark "was only exercising his responsibility in a perfunc-
tory manner ." Here, too, I am persuaded that this statement is part of a pattern in
Smith 's testimony of attempting to dilute the real nature of Clark 's status.
In any event , whether Clark performed his supervisory work in a "perfunctory"
manner or not is beside the point . Mere neglect by a supervisor of his duties does
not constitute him any the less a supervisor within the purview of the Act. The
statutory test is whether he is vested with authority to perform various acts, among
them , "responsibility to direct " the work of others . Even if one agrees with Smith
that Clark , while "manager ," had authority only over the two salespeople, that is not
a controlling factor. The important question is whether the authority he was sup-
posed to exercise was not merely of a "routine or clerical nature, but require[d] the
use of independent judgment." That it was not of a "routine or clerical nature" is
manifested by some testimony Smith gave, signifying that the Respondent regards
Clark 's authority as having substantial importance Smith testified that Clark , as "top
salesman," was "so busy himself that he was neglecting to outline the work for the
other salesmen." Then , according to Smith , about a week before the hearing, "we
called him in and made complete lists of all customers in that district and told him
to allocate certain customers to certain salesmen and them [sic] he was responsible
HERALD PUBLISHING COMPANY OF BELLFLOWER 83
for seeing that those customers were called on." The circumstance that a more effi-
cient and formalized system of direction of the other salesmen was set up only re-
cently does not alter the fact that Clark had similar supervisory responsibility prior
thereto, for, as Smith also testified, "up until last week, . all he did was he was
supposed to supervise them and would make out lists of certain customers and he
allocated certain customers to certain salesmen ." Moreover, with respect to the period
before the "complete lists" were prepared, Smith's own testimony indicates that the
Respondent looked to Clark for something more than the allocation of "certain cus-
tomers to certain salesmen," for Smith testified with respect to a given sales venture:
"He [Clark] had one man take over when he could not handle it. That is the only
specific case that I know of where he actually paid attention to the man who worked
with him, whose work he was responsible for." [Emphasis supplied.] Here, too, this
may indicate that Clark was remiss in his attention to his supervisory duties prior to
the preparation of the "complete lists," but the important point is that it also indicates
that he was "responsible for" the work of others and was vested with, and exercised,
authority to use selective discretion in the assignment of tasks. Notwithstanding the
infirmities in Smith's evidence, I draw the inference from his testimony as a whole
that Clark had such authority and was "responsible for" the work of others when he
had the title of "manager," as distinguished from that of "general manager." In sum,
Clark is now, and was at all relevant times, a supervisor within the meaning of the Act.
Although Smith at one point described Cleland as "editor or head newsman" of
the Lynwood edition, also terming Cleland "city editor of the Compton paper," the
publisher denied that any reporters "work under" Cleland and that the latter has
authority to give instructions to any other employee. However, it is undisputed that
Butler told London, when hiring the latter in July 1950, that he "would be working
under" Cleland, and instructed Cleland to assign London to "some stories" during the
coming week. London, who was transferred from the Compton headquarters to the
North Long Beach office in July 1953, testified that prior to his transfer, editorial
employees received assignments to cover news events from Cleland, as well as Butler;
and that on occasions when Butler was absent, Cleland performed the former's func-
tions. Butler testified in effect that his absences were infrequent and usually of short
duration; that "no one" was in charge during such absences, but that on such occa-
sions he would call by telephone and give "instructions on various things" to "various
people"; that during his vacations it was usually Brewer "who took over"; and that
Cleland's "only activity" other than reporting, "was coordination of news." Butler
agreed that he "sometimes" used Cleland "as a contact man" and "probably" more so
than he did anyone else . Butler's testimony contains no specific denial that Cleland
distributed reportorial assignments from time to time, nor does it elaborate on the
instructions he gave by telephone to "various people." Bearing in mind Cleland's
function as coordinator of news and as Butler's "contact man," it is not improbable
that Cleland, upon specific instructions from Butler, performed supervisory functions
from time to time as a substitute for Butler while the latter was absent. On the other
hand , it is quite likely that such occasions were infrequent and of short duration.
Upon close examination, there is no inevitable major inconsistency between London's
version of Cleland's duties and that given by Butler, for the latter's testimony does
not quite exclude the possibility that Cleland acted for him from time to time, while
London's account contains no concrete measure of the extent to which Cleland acted
as a substitute for Butler. Against the background of the infirmities in Smith's testi-
mony , mentioned above, and others to be noted later, London's undisputed version
of his conversation with Butler in 1950, London's description of Cleland's duties,
and Butler's testimony on the subject, I am persuaded, contrary to Smith's claim, that
Cleland, at least from time to time, exercises some authority over other employees,
and gives them instructions in the form of work assignments. Moreover, it would
seem- that Smith's own description of Cleland as "head newsman" implies the existence
of newsmen subordinate to the "head." The evidence, however, is insufficient to sup-
port a finding that Cleland's authority and functions are of such a nature as to con-
stitute him a supervisor within the purview of the Act. There is good reason to
believe that Cleland has substituted for Butler from time to time, as London claims,
but I draw the inference that such occasions have been relatively infrequent and that
Cleland has spent only a small portion of his time substituting for Butler. An em-
ployee does not acquire a supervisory status within the meaning of the Act simply
because he spends a small percentage of his time supervising others during occasional
absences by his superior. N. L. R. B. v. Quincy Steel Casting Co., 200 F. 2d 293
(C. A. 1). The fact that London and others have received work assignments from
Cleland is not of itself decisive, for, unlike the evidence pertaining to Clark, one is un-
able.to determine from the record whether Cleland' s functions in that regard were of a
387644-56-vol. 114-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
routine character or whether he was vested with responsibility for seeing that the as-
signments were properly carried out. Thus I hold that the evidence does not establish
that Cleland is a supervisor within the contemplation of the Act.
The Guild made efforts to organize employees of the Respondent in the spring and'
summer of 1954. As will appear in more detail later, Sol London, Doris Farley,
Raymond J. Ross, and Gloria Hickey either engaged in union activity or manifested,
their interest in the Guild at one point or another during that period.
It is undisputed that London was discharged in July 1954- and Hickey; Ross,, and
Farley in the following month. The General Counsel contends , and the Respondent
denies, that they were dismissed because of their union activities or affiliation: ' The'
General Counsel also contends that the Respondent interfered with, restrained, and
coerced employees during the month of July in the exercise of rights guaranteed"
them by Section 7 of the Act, by various statements and acts of supervisors, including
an attempt to engage in surveillance of what it believed to be a union meeting,
threats to discharge employees who engaged in union activities; and the granting
of wage increases to employees in order to dilute their interest in unionization.
There is no dispute that the wage increases were given, but the Respondent denies
that any unlawful motive was behind them. With some exception to be noted later,
the supervisors to whom the General Counsel imputes acts or statements constituting-
interference, restraint, and coercion deny that they engaged in such conduct:
Evidence bearing on the allegations of interference, restraint, and coercion will be
considered first below, and will be followed by a consideration of the motivation
for the discharges.
B. Evidence of interference, restraint, and coercion
Turning first to the alleged attempt at surveillance, the allegation rests upon the,
testimony of William L. Sheets, who is employed in one of the community offices
of the Herald American. Sheets testified that when he came home from work one
afternoon shortly after London's discharge (either on the same day or the next,
according to Sheets' estimate), he found Murray there, and that Murray told him
that he had come to see if a union meeting was in progress at the house: Then,
Sheets testified, he asked the reason for such an assumption, and Murray-replied
that he had heard Sheets inviting Ross to his home "to pitch horseshoes", had
assumed that "horseshoes was the code word to signify the intention of calling a
union meeting"; and had called on Sheets "to verify it." According to Sheets,
Murray then "apologized for his misapprehensions." -
Murray, called by the Respondent, agreed that he visited Sheets' home on the,
occasion in question, but described a different motive for his visit. Stating that he
has known Sheets for several years and that the latter "has had a liquor problem,"
Murray asserted that he had heard Sheets "make a remark [in the office] that he
was going to play horseshoes"; that to him (Murray) that meant "opening a keg of
nails" (or to "get drunk," as Murray later explained); that Sheets' "lives in the'
same general neighborhood" as he; and that on his way home, as he was convinced
that Sheets meant that he was going to get drunk, he stopped at Sheets' house "to-
see if everything was 0. K." Murray stated that Sheets was not there when he
arrived; that he talked to Sheets' wife, discovering during his talk with her that
Sheets had a "horseshoe pitch" in his home; that Sheets came in about 20 minutes
after his arrival; and that he "kidded [Sheets] about the horseshoe incident,"
explaining, "Bill, I got your remark on the horseshoes and I thought perhaps there
was something I missed, so I came over." Murray denied that he visited Sheets'-
home in order to see if a union meeting was in progress or that he had been instructed
by any of his superiors to go there for that purpose.
If it be asserted that there is some implausibility in Sheets' claim that Murray
said that he took the former's reference in the office to horseshoes as a "code word,"
the fact is that Murray's testimony; too, indicates that he gave a euphemistic inter-
pretation to the remark. Thus the testimony of both witnesses would indicate,that
Murray did not accord a literal meaning to the remark he claims he heard Sheets'
make in the office: - -
Be that as'it may, on'the credibility issue presented, one matter, among others; to.
keep in mind is that there is no evidence that Sheets has any interest in the outcome
of.this proceeding. He is currently in the Respondent's employ. ' -What ,is more;'
he' appears to have a position of some responsibility, since, his- name ' and, title of.
"division editor" are listed in the masthead of the Lakewood-Los Altos edition of
the Herald American; and the evidence indicates that he is the second highest paid
nonsupervisory editorial employee (see General Counsel's Exhibit No..16). Against
that background, no reason appears why he should give testimony contrary to his
HERALD PUBLISHING COMPANY OF BELLFLOWER 85
Employer 's interest without a valid basis . In short , Sheets impressed me as a truth-
ful and disinterested witness. In contrast , Murray's testimony reflects some uncon-
vincing features not only with respect to the incident under consideration , but, as
will appear later, in connection with Farley's discharge. Why he should not have
given a remark about pitching horseshoes a literal construction , rather than inter-
preting it to mean that Sheets meant to "open a keg of nails" (also a euphemism)
does not plausibly appear . Murray offered the explanation that Sheets had been
addicted to alcoholism , stating , also, that he "knew that [Sheets ] did not play
horseshoes ." (Admittedly , he found a "horseshoe pitch " at Sheets ' home , although
claiming to be unaware of its existence before his visit .) However , he agreed that
he had not seen Sheets in an intoxicated state for about a year prior to the alleged
remark about pitching horseshoes . Moreover , Murray's description of the setting
in which he claims the remark was made has a note of vagueness . He professed
not to be able to remember to whom the remark was made, although agreeing
that Sheets "was talking to someone else" whom he ( Murray ) did not "associate
with drinking." At one point, Murray testified that the remark, "Let us go and pitch
some horseshoes," could "have been directed" at him, but he admitted that he did
not go to Sheets ' home by invitation , also stating that he does not recall whether
the statement was in fact made to him. The sum of the matter is that I find Murray's
explanation of his visit to Sheets' home to be unconvincing, and I credit Sheets'
version of the incident at his home.
Although Murray asserted that he received no instructions from any of his
superiors to call at Sheets ' home, it may be borne in mind that his attempted sur-
veillance of what he believed was to be a union meeting was closely related in
time to other unfair labor practices, 'to be described later, and the inference is
warranted that Murray's visit was part of a pattern by the Respondent of countering
or discouraging union activity among its nonmechanical employees. In any event,
whether or not Murray acted under instructions from any superior, the fact is that
he was a supervisor and represented management in the eyes of the employees, and his
conduct is thus imputable to the Respondent The tact that no union meeting was
actually in progress does not affect the conclusion that Murray's attempt to engage
in surveillance violated the Act. The attempted surveillance and Murray's statement
to Sheets of the purpose of his visit contravened Section 8 (a) (1) of the Act.
Sheets also testified that on one occasion Smith telephoned him at one of the
community offices and told him that "he had learned of a movement to organize
a Guild in the Herald American, and that he would rather close his papers down
than sign up with the Guild." Sheets stated that he could not recall the date of the
call or whether it occurred before or after London's discharge, but he estimated that
the call was made "probably [in] June or July " Smith denied making the state-
ment, asserting: "No such conversation occurred It would have been ridiculous
on my part to make any statement at all to Mr. Sheets. It did not concern his de-
partment " Smith also stated that he "hardly knew Mr Sheets by sight" at the time
in question. Whether Smith "hardly knew" Sheets by sight is not decisive, although
it may be noted that Smith's title was then, as it is now, division editor, and that he
was then, as he is now, the second highest paid among the nonsupervisory editorial
employees. Nor may one find guidance to the facts in Smith's inaccurate state-
ment that the Guild's organizational activities "did not concern" the editorial de-
partment. As in the case of Sheets' description of Murray's visit, no reason appears
why Sheets should fabricate a story contrary to his Employer's interest He is a
disinterested witness. Smith is not. and, as pointed out earlier, other portions of
Smith's testimony reflect a substantial number of infirmities. These militate against
acceptance of his denial that he made the statement Sheets attributes to him. I
credit Sheets.
The evidence of Smith's statement is undoubtedly relevant to the question of the
Respondent's attitude toward organizational activities by its employees, and as
background for an appraisal of its motivation for the discharges The question
arises whether a finding should be made that Smith's statement violated Section 8
(a) (1) of the Act. I do not make such a finding for reasons set out below. The
complaint in effect alleges that the acts of interference, restraint, and coercion con-
sist of specific statements or conduct by named supervisors. Smith's statement to
Sheets is not alleged. I do not hold that a finding of violation of Section 8 (a) (1)
can be made only if the conduct in question is specifically detailed in the complaint
and attributed there to a named individual What I do hold is that there should
be, some appropriate allegation to support the finding. .This appears to be subject
to some' exception (to be described below) which may be spelled out from a number
of cases. But to lose sight of the function,of a:complaint as staking out the boun-
daries of the issues, and as the instrument for informing a•respondent of•the charges
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made against him, is to invite an attrition of procedural machinery designed by the
law to promote fair play and clarity in statement of the issues
The exception noted above is suggested by cases holding in effect that a finding
of violation of the Act is appropriate, although the conduct in question is not al-
leged in the complaint, if the issue leading to the finding was "fully litigated at the
hearing" (Olin Industries, Inc, 86 NLRB 203, 206, footnote 10, enfd. 191 F 2d
613 (C. A. 5), cert. denied 343 U. S. 919) 23 However, 1 do not read these cases
as requiring a finding that Smith's statement violated the Act The disputed factual
issue of whether he made the statement was "fully litigated" in the sense that both
sides adduced relevant evidence bearing on the subject As pointed out earlier, the
statement imputed to Smith bears on issues raised by the pleadings. But that does
not mean that the evidence adduced with respect to the disputed factual point raised
an issue, in turn, whether Smith's statement constituted a separate violation. Such
an issue was not raised, and, therefore, could not have been "fully litigated," for
the simple reason that the Respondent has nowhere been put on notice, whether in
the complaint or otherwise, that Smith's statement, relevant though it may be to
various issues presented by the pleadings, is also subject to a finding that it was of
itself violative of the Act.
Hickey and Farley, who were employed in the Bellflower office prior to their dis-
charge, impute statements of a coercive nature to Lugoff Hickey worked under
Lugoff's supervision. According to Hickey and Farley, the statements were made
on one occasion during the first half of July 1954 in the course of a conversation
between Lugoff and Hickey in the Bellflower office. Hickey's version, under di-
rect examination, was that Lugoff asked her if she had any connection with the
Guild; that she replied that she had none; that he then said that he hoped she had
no connection with the organization because employees connected with it would be
dismissed immediately; that he then stated that he knew that there were Guild
activities going on, "possibly centered in the North Long Beach and Bellflower
offices," and that Smith had told him "to find out who was responsible" and to dis-
charge all those in the classified department if necessary. Under cross-examination,
Hickey gave substantially the same version, except that she omitted any reference
to Smith's alleged instructions to Lugoff. Farley's account of the conversation is
less detailed. She stated in effect that she did not hear all of the discussion be-
cause she was attending to some duties, and that she "didn't pay too much atten-
tion" to it. Her description of, the interrogation of Hickey by Lugoff is that he asked
Hickey "did she know anything about it, and who was involved." Farley, also
stated, in substance, that she heard Lugoff say that he was glad that Hickey was
not involved, and that Smith was going to discharge all those in the classified de-
partment if he did not find out who was involved in the union activities. Lugoff
testified that Smith did not give him any instructions to discharge anyone "because
of union activities," and in effect denied that he made the remarks imputed to him.
In resolving the credibility issue, I have given consideration to variances between
the Hickey and Farley accounts, and to differences between Hickey's initial version
and the one she gave under cross-examination. These factors are not decisive.
The testimony of the 2 women deals with details of a conversation that occurred,
according to their account, about 5 months earlier. Indeed it would be strange,
and perhaps a reflection on their credibility, if they were in complete accord on
all details of the incident. Upon observation of both, I formed the opinion that
they endeavored to give their best recollection and my impression was that they
were both forthright witnesses. Moreover, although they differ in details, they are
broadly in accord with respect to two significant features: (1) That Lugoff inter-
rogated Hickey on the subject of union activities; and (2) that in substantial effect, if
not in precise terms, Lugoff imputed an intention to Smith of finding out who was
responsible for union activities, and of discharging all employees in the classified
department if that were necessary to eliminate union sentiment there. This is
reminiscent of Smith's statement, quoted by Sheets, that he "would rather close his
papers down than sign up with the Guild." The testimony of Sheets, a disin-
terested witness, contributes corroborative weight to that of Hickey and Farley.
Moreover, as indicated by the testimony of Hickey and Farley, there is good reason
to conclude from evidence of a conversation between Ross and Butler on July 12,
1954, that the Respondent was in fact endeavoring to find out which of its employees
were engaged in union activities. The conversation will be described in detail later
in connection with Ross' discharge, but one may note here that on the occasion in
23 See, also , American Newspaper Publishers v. N L JR B.. 193 F. 2d 782 (C A. 7), affd.
345 U. S. 100; United Biscuit Company of America, 101 NLRB 1552, 1568 , footndte 27,
enfd . 208 F. 2d 52 (C. A. 8), cert. denied 347 U. S. 934.
HERALD PUBLISHING COMPANY OF BELLFLOWER 87
question Butler sought to find out from Ross if the latter had any connection with
the Guild. Lugoff's interrogation of Hickey, it seems to me, was cut from the same
cloth. Finally, as will appear later, Lugoff gave some implausible testimony on
the subject of Hickey's discharge, and this weighs against acceptance of his denial
,that he made the remarks attributed to him by Hickey.
I find that on the occasion in question, he asked Hickey whether she was con-
nected with the Guild; stated that employees so affiliated would be dismissed im-
mediately; and, in substance, quoted Smith as telling him to find out who was re-
sponsible for union activities in the classified department and to discharge all em-
ployees in the department if that were necessary to eliminate any sentiment there
for unionization. As a consequence of such interrogation and statements by Lug-
off, the Respondent violated Section 8 (a) (1) of the Act 24
On July 18, 1954, the Respondent increased the weekly wages of all but two of
the nonsupervisory employees on its editorial staff.25 In all, the wages of 12 em-
ployees were raised The increases were not uniform, some amounting to $5, others
to $10, and several to $15 per week.
Both Smith and Butler described the Respondent's purported reasons for the in-
creases. Smith testified that he became aware in or about March 1954 that the
economic condition of the newspaper was deteriorating; that he held a meeting
of department heads in March and told them that the newspaper was "losing con-
siderable money," and that they should "cut down" on expenses as much as they
could; that at the meeting discussions were also held concerning "more efficiency
in the job," prospects for "additional business," and the "possibility of trying to
raise rates"; that prior thereto, he had felt that wages of editorial personnel had
lagged behind those of employees in other departments, and that he and Brewer
had discussed that matter prior. to March; that in that month (or in April), subse-
quent to the supervisors' meeting described above, taking a "more active interest"
than previously, he brought the matter of wage scales up "rather forcibly" at a meet-
ing with Brewer and Butler, telling them that he "didn't want cheap people" and
"would rather have one high priced man than three cheap ones"; that Butler ex-
pressed his belief that the Herald American was "paying more than other news-
papers in the neighborhood"; that at that time, he (Smith) "wasn't engaged actively
in handling the paper and . didn't want to step in and take over arbitrarily";
that he raised the question of wages again later and "insisted on a survey" of wage
rates paid by such newspapers; and that in June or July Butler reported the re-
sults of such a survey to the effect that the other newspapers "were either paying
about the same prices that we were or less." (At one point in his testimony, Smith
stated that he requested the survey in July or August. Elsewhere he testified that
the survey results were reported to him in June or July. The increases, as noted
earlier, went into effect on July 18.)
Putting an evaluation of Smith 's testimony aside for the time being, it is diffi-
cult to determine from Butler's testimony when definitive discussions were held be-
tween him and Smith on the subject of increases for the editorial employees. Stat-
ing (in some contrast to Smith) "I think there was a little conversation about wages-
it didn't amount to much-around March," Butler testified that he and Smith
had discussed the subject over a period of 4 or 5 months preceding the increases;
that "at least as early as May, perhaps earlier," Smith took the position that wages
of editorial employees should be increased; and that he (Butler) replied that he
hoped that the Respondent's financial position would warrant the increases in the
fall, but that he was fearful that it would be difficult to publish the newspaper "if
we had to pay more and then cut down on the number of people." At another
point in his testimony, Butler agreed to a suggestion that the "first significant con-
versation which eventually resulted in the wage increase" took place in May, but
when asked to describe what was said, he replied, "That is difficult to remember
because we had several conversations." Later, agreeing that he had a "specific con-
versation" (with Smith) relating to the increases, he testified that it "would be very
difficult to say" when it occurred. Additional questioning on the subject of such
a conversation brought the reply, "I am not sure of my recollection, but if I were
trying to place it, I would say it was probably in June." On that occasion. according
to Butler, Smith told him that the wages of the editorial employees "should be
21 That conclusion is not affected by Smith's denial that he eves ordered anyone "to fire
any employee for union activities." The fact is, as will appear, that employees were dis-
charged for such activities. In any event, notwithstanding Smith's denial, Lugoff's state-
ments to Hickey are imputable to the Respondent.
As nearly as can be determined from the evidence, those who did not receive increases
on that date were Donald Desfors and Marion Mattison. The latter's weekly wages were
raised by $10 about 10 days before the general increase
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
higher," and he replied that perhaps Smith "was right and that I would look into it
and bring a report back to him as to what I thought it should be." Butler stated
that he made a survey and reported orally to Smith "somewhere around the middle
of July" that Smith "was correct, that we needed some wage increases."
According to Butler, his survey took the form of inquiries concerning wages paid
by four nearby newspapers-one in Bellflower, another in Norwalk, a third in Hunt-
ington Park, and the fourth in Downey. He stated that he could not recall the name
of the Downey newspaper, and that his information concerning wages paid by the
Bellflower newspaper came from an interview he had with a former employee of the
paper, but testified, "Now, whether that [the interview] was at that time or not, 1 am
not positive " From the interview, Butler stated, he gathered that the Bellflower
paper paid "between $5.00 and $10 00 a week higher" than the Herald American.
Concerning his inquiry about the Huntington Park paper, he testified: " I believe
I looked it up, as fat as I could find, the record of what was being paid in Huntington
Park and I remember discussions [sic] wages with one of the reporters of the Hunt-
ington Park papers, who came in to see me." Butler described the information from
the reporter as "a little bit uncertain " As nearly as he "could understand it," Butler
stated, he learned that the rate for beginners was lower on the Huntington Park
paper than for comparable personnel on the Herald American, but that the former's
wage rates "for the long time people would be a bit higher." Butler did not describe
the form his inquiries took with respect to the Norwalk and Downey papers, but he
stated that wages on the former were about $5 to $10 higher than those paid
editorial employees by the Herald American.
A number of factors support the General Counsel's claim concerning the wage
increases. Of these, the timing stands out in significance I have no doubt that in
the month of July, the Respondent was considerably concerned over union activities
by or on behalf of the Guild. Evidence of this may be found in Smith' s statement
to Sheets, Butler 's interrogation of Ross on July 12, Lugoff's conversation with
Hickey during the first half of July, and Murray's visit to Sheets' home about July
17 or 18 There is good reason to believe that by July 17, the date of London's dis-
charge, the Respondent suspected that the editorial department was a center of
union activities in the person of London. He was employed in the North Long
Beach office, and in that connection it will be recalled that some days before London's
discharge , Lugoff told Hickey that Guild activities were "possibly centered in the
North Long Beach and Bellflower offices." The circumstances of London's discharge
will be discussed later, but the conclusion may be noted here, supported by reasons
to be set out in another section of this report, that he was discharged for union
activities on July 17 The wage increases were put into effect on the following day.
The conclusion that this was no mere coincidence is bolstered by factors in
the testimony of Smith and Butler, as well as the quality of evidence they gave.
According to Smith , the Respondent was not only "losing considerable money"
early in the year, but its "profit and loss figures for the year . . . were very bad"
in midsummer , showing a loss of about $5,400 by the middle of August. Yet at
about the very time when the financial condition was allegedly "very bad," the Re-
spondent gave increases totaling $125 per week, increasing its financial outlay at the
•rate of $6,500 per year. There is no evidence that any employees had requested that
their wages be raised, and in the absence of such evidence, it is pertinent to inquire
why the Respondent should select the time, of all others, when it is claimed that the
"profit and loss figures . . were very bad," to raise the wages of all but two of
the Respondent's nonsupervisory editorial employees To be sure, there are gen-
eralizations in the testimony of both Smith and Butler to the effect that it was Smith's
policy to effect efficiency and economy by paying higher wages to a reduced staff,
but if that is so, it seems strange indeed that the policy was not put into effect in
March when the newspaper was, according to Smith, "losing considerable money,"
but was deferred until a period, months later, when the Respondent was manifestly
concerned over sentiment among its employees for the Guild. Smith endeavored to
explain away the delay by stating that he was not "engaged actively in handling the
paper" in March and "didn't want to step in and take over arbitrarily which I did
do in July and August." In the light of my impression of Smith , the explanation
has a tenuous cast During his testimony, he was emphatic and positive in demeanor
and assertion , impressing me as an individual who is disposed to seek domination
over a situation with which he, is concerned. He had complete control over the
newspaper in March, notwithstanding his claimed abstention from active direction
of its affairs , when, as he asserts , he raised the wage question "rather forcibly" with
Brewer and Butler, and one may well entertain a substantial doubt that the alleged
delay was merely the product of his forbearance. As against The subjective claim
of such-forbearance advanced now, there is the objective fact that the increases
HERALD PUBLISHING COMPANY OF BELLFLOWER 89
were granted to editorial employees in a setting of unfair labor practices, following
by 1 day the discharge of London, an editorial employee, because of his union activi-
ties. I think that the objective facts are a sounder guide to an appraisal of the
Respondent's motivation for the increases than the claim that they were delayed
because Smith did not wish previously to intrude himself "arbitrarily" into effectua-
tion of management policy. Moreover, it is difficult to see why it would be arbitrary
for an individual having complete control over an enterprise, which is manifestly
-his in fact if not in form, to require his subordinates to put a given policy into effect
which'he believes to be right as a good business practice.
There is an additional, and important, reason for questioning the Respondent's
claim that the increases were dissociated from the union .sentiment among the em-
ployees. Implicit in Butler's testimony, at least, is the claim that the increases were
,given.to bring the wages of editorial employees into line with those paid by neigh-
=boring newspapers. The results of the alleged survey, as Butler described them, would
indicate that he learned that editorial personnel of two of the papers were paid
.higher wages than the employees of the Respondent, and that wages paid by a third
were higher for some employees and lower for others. (Butler did not specify what
he learned with respect to the fourth newspaper allegedly surveyed.) Also implicit
in Butler's testimony is a claim that he reported his findings to Smith. Yet, in
contrast to the alleged findings, it is a striking fact that Smith testified that Butler re-
ported "that they [the other papers] were paying about the same prices or less."
[Emphasis supplied.] The discrepancy is such that it leads to a substantial doubt,
to say the least, either that the survey was made or that Butler made a report to
Smith. I find myself unable to view either the alleged survey or the report as a
reliable basis for findings.
Finally, before setting down a definitive conclusion concerning the increases, some
comment on the quality of Butler's testimony is appropriate not only as a basis for
evaluating the motive for the increases, but because such an evaluation has a bearing
on the evidence pertaining to London's discharge, which will be discussed later. A
pattern of evasiveness runs through Butler's testimony. He gave his evidence with
cautious demeanor, but I concluded that the caution was the product of an
intention to avoid committing himself rather than of a desire to testify accurately
in areas where the Respondent's interest could be adversely affected. Even with
respect to so basic and undisputed a matter as the fact that the increases were grant-
ed-a fact obviously within his personal knowledge-when asked whether increases
were granted to editorial employees in July 1954, he replied, with cautious de-
meanor : "Yes, my understanding is there were, yes." [Emphasis supplied.] He
seemed careful to avoid commitment when efforts were made during his examina-
tion to determine concretely when the question of granting the increases first be-
gan to take crystallized form-an important question if one bears in mind the setting
in which the wages were raised. The pattern of evasiveness was quite pronounced
when inquiry focused on details of his alleged survey. He professed a loss of
trecollection as to the name of the Downey newspaper, although he has worked in
the area for many years, and little more appears in his description of his inquiries
than that he spoke to an employee of one paper and to a former employee of another-
a somewhat casual approach to the survey which Smith claims he "insisted" upon.
The type of caution described above was manifested in his references to the infor-
mation he claims he received from the former employee. In that connection, he
testified : "I believe I talked to a former employee if I remember correctly. I am not
certain however. . . . The thing I am not quite clear on-at one time I heard that
the society editor on the Herald Enterprise ^(a neighboring newspaper in Bellflower)
was disengaged and I interviewed her about wages. Now, whether that was at that
time or not, I am not positive." Thus his testimony even leaves open the question
whether the alleged conversation with the former employee of the Herald Enter-
prise was part of his alleged survey, and if the survey was made, one may ask
whether it consisted of anything more than a chat with an unidentified reporter for
a Huntington Park paper, who, according to Butler, gave him information that was
"a little bit uncertain." Butler's testimony offers no safe guide to an answer to the
question. It is unnecessary to pursue other details of Butler's testimony, for what
has been said sufficiently exemplifies my conclusion that he was not a' forthright
witness.
The sum of the matter is that the testimony of Smith and Butler, and its quality,
contribute to the conclusion that the wage increases were timed to act as a deterrent
to organizational activities among the Respondent's employees, thus interfering with
rights guaranteed the employees by Section 7 of the Act. I find that by putting the
wage increases into effect the Respondent violated Section 8 (a) (1) of the Act.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. London's discharge
London entered the Respondent's employ as a reporter in July 1950. His salary
at that time was $50 per week. He was employed m the Compton office until July
1953, when he was transferred to the North Long Beach office, remaining at the
latter place until his discharge on July 17, 1954. He was the only editorial employee
stationed in the North Long Beach office . The other personnel there consisted of
a classified advertising employee, 2 or 3 salesmen , and a circulation manager. Dur-
ing London's employment , he received a number of increases , the last of them in
March 1954, when his wages were raised $5 per week. At the time of his discharge
his weekly salary was $75.
While employed in Compton , London and other editorial employees stationed there
customarily worked until about 7 or 7:30 p. m. each Tuesday and Wednesday. This
was necessitated by the fact that the Thursday issue of the newspaper went to press
on Wednesday, which is known as a "make-up" day, that is, a day when the news-
paper is made up for printing . Mondays and Thursdays were relatively slack periods
for the Compton editorial personnel , and they were given an afternoon off on either
one of those 2 days to compensate for the extra time worked on Tuesdays and
Wednesdays . Following that practice , London was given Thursday afternoon off.
The Compton office was open each Saturday (which is also a "make-up" day in
preparation for the Sunday issue). While in Compton, London worked a full day
on Saturdays.
After his transfer to North Long Beach, London customarily worked late on Tues-
day nights , spending a varying number of hours at the Compton office , sometimes
until midnight or later . The time there was devoted to preparing and turning in
copy and in "make-up" work. For some time after his transfer, it was London's
practice to come to the Compton office from North Long Beach about 6 : 30 p. m. and
spend the remaining late work hours in Compton . At one point or another, he
altered this practice to the extent that he usually came to Compton about 10 p. m.
for the purpose of turning in his copy and performing related "make-up" work, re-
maining at the Compton office for varying periods of time, sometimes finishing his
work as early as about 11 p. in. and at other times at midnight or later. On 6 or 7
occasions during his year at North Long Beach , he left "the office" (whether North
Long Beach or Compton is not made clear in the record) at about 8 p. m. on Tues-
day, worked at home after that hour typing stories, and brought the copy to the
Compton office on the following morning.
The North Long Beach office was closed on Saturdays, and London did not work
there on those days. He nevertheless worked Saturday mornings, proceeding di-
rectly to the Compton office to turn in copy and perform "make-up" work, and usually
arriving there at about 6:30 a m 26 On such days, he usually finished his work
before noon (sometimes, the record indicates, by or before 11 a. m.). depending
"on conditions in the back shop" (presumably meaning conditions in the press shop).
He did not work on Saturday afternoons while attached to the North Long Beach
office. While stationed there, he took Thursday afternoons off, commencing to do so
shortly after his transfer and continuing the practice until his discharge. (The
question whether he had permission to do so will be considered at a later point.)
London began to engage in organizational activity among the Respondent's em-
ployees on behalf of the Guild about the end of April or early in May 1954, soliciting
memberships for the Guild and securing some signatures on applications for member-
ship. That he was active in July is evidenced by the fact that he solicited Cleland
to join the Guild on July 10, pointing out what he regarded as advantages of unioni-
zation, and giving Cleland an application card?7
20 London testified that on Saturdays he "usually got there [Compton] at 6: 30," with-
out specifying "a. in " or "p m." From the context of his testimony as a whole, it is evi-
dent that he meant that he usually arrived in Compton on Saturdays at 6 • 30 a. in
24 London gave a detailed (and undisputed) account of the conversation. Reference
need be made to only some of its aspects . On the occasion in question , before London re-
vealed that he was active on behalf of the Guild, Cleland asked him whether he knew any-
thing about a "Guild drive" at the paper . The General Counsel apparently seeks a finding
that Cleland's inquiry violated Section 8 (a) (1). As stated earlier, the evidence does not
establish that Cleland was a supervisor within the meaning of the Act It need not be
decided whether the finding sought may be based on the fact that Cleland exercised some
authority over-others, and that when London was hired he was told by Butler that he
"would be working under" Cleland A finding that Cleland's inquiry violated the Act
would'neither add to, nor detract from, the remedy to be recommended below. The evi-
HERALD PUBLISHING COMPANY OF BELLFLOWER 91
There is no doubt that Butler was aware that London engaged in union activities.
Butler himself conceded as much, although putting it in this fashion: "I had only
a vague report which was only indirectly that he had been spendiing working time
down there, soliciting membership for the union." Then he stated, "I believe it was
Mr. Brewer [who gave him the report] but it was indirect." In any event, it is
evident from the whole record, including the testimony (to be described later) of
Oney A. Fleener, one of the Respondent's employees, that Butler knew at the time he
discharged London that the latter had engaged in organizational activities on behalf
of the Guild.
Butler discharged London shortly after the latter had completed his "make-up"
work in Compton on Saturday, July 17. The managing editor denied that he dis-
missed London because the latter engaged in union activities. Butler testified that
he had once warned London "about leaving early on Thursday"; and that thereafter,
he had come to the North Long Beach office shortly before noon on a Thursday
(about a week before the dismissal , according to Butler's estimate), had found
London absent, and had been informed by others in the office that London had gone
for the day. The sense of Butler's testimony, taken as a whole, is that he dis-
charged London because the latter took the afternoon off on the Thursday in ques-
tion in disregard of a previous warning not to follow that practice. The alleged
justification does not stand up under scrutiny in the light of factors set out below.
London testified that in or about August or September 1953, he told Butler that
he "had been taking off on Thursday afternoons" because he "had been working
late on Tuesday nights"; and that Butler replied, "I know that as well as you and
as long as you turn in your copy, that is all we require " Butler's testimony con-
tains no express denial of the quoted statements. But quite apart from that circum-
stance, there are factors which render plausible London 's assertion that Butler knew
and approved the former's practice.
As Butler himself put it, he "recognized the right of the employee, if he had
some duties that were out of the working hours, he might go home a little earlier."
Although Butler also asserted that such a practice is different from London's custom,
the fact is that there appears to have been a policy, in general, under which editorial
employees took compensatory leave for extra working hours. This conclusion finds
additional support in the undisputed evidence that editorial personnel in the Compton
office were given an afternoon off on Mondays and Thursdays to compensate for
evening work on Tuesdays and Wednesdays. As London worked late on Tuesday
nights, while stationed in North Long Beach, it is not implausible that Butler should
recognize that it was equitable for London to take compensatory time off each
Thursday afternoon, even if London, in contrast to his practice while stationed in
Compton, was not required to work on Saturday afternoon.
More to the point, it may be borne in mind that London followed the practice
of taking Thursday afternoons off substantially throughout the entire year that he
was stationed in North Long Beach; and that Butler, in the course of his duties,
customarily visited that office on Thursdays at varying times between 10.30 a. m.
and 2 p. in. Yet Butler, here also manifesting the vagueness which characterizes
so much of his testimony, stated that "it was quite some time" after London's trans-
fer that he became aware that London was not at work on a Thursday afternoon;
that he could not recall when that was; that he "couldn't swear" whether it was
in 1953 or 1954; and, finally, that it was "probably" in the spring of 1954 that he
first became aware of the matter. Bearing in,mind that Butler called at the office
each week on the very day that London absented himself, I think it improbable that
Butler would,not become aware of London's practice much sooner than the man-
aging editor's testimony suggests. Moreover, Butler's claim that he warned Lon-
don about the practice is also cloaked in vagueness. The managing editor testi-
fied that "at least four or five times," when he called at the office, he noticed that
London was absent in the afternoon; that on 1 or 2 occasions, he inquired of others
in the office as to London's whereabouts, and was told that-the employee had gone
for the day; that as a result of the latter's absences, he became "suspicious of what
[London] was doing"; and that he warned London about the practice- As to the
terms of the alleged warning, Butler stated that his "memory of the conversation
is very vague as to what actually was said," but he nevertheless testified that he
dence will not support a holding, apparently also sought by the General Counsel, that
Cleland informed the Respondent of London's organizational activities, and I make no
such finding Nor do I base findings of unfair labor practices made herein on,the theory
that any statements by Cleland are imputable to the Respondent. However, the conversa-
tion between London and Cleland is admissible as establishing, the fact of London's or-
ganizational activities during a period relevant to issues in this proceeding.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called London's attention to the fact that he had Saturday afternoons off, and that
he told London that "we were supposed to be on the job five and a half days in the
week," and that "he [London] should not be leaving early on Thursday any more."
Asked to fix the time of the alleged warning in relation to the last occasion when
he states that he found that London had gone for the day, Butler stated, "If I were
guessing, I would say it would be between one and two months, but I couldn't swear
to it," and followed this with a statement that his "recollection is very vague on the
point." Thus, according to the estimated time of the alleged warning, if one may
term Butler's guess an estimate, one is in effect asked to believe that London was
able to take each Thursday afternoon off, without permission, for almost an entire
year before Butler got around to warning him to stop the practice. A reasonable
regard for probability militates against such a belief. Moreover, as will appear, at
the time of the discharge, Butler said nothing about London's practice of taking
Thursday afternoons off, and this contributes support to the conclusion that Butler
was aware of, and had'approved, London's absences. In sum, I conclude that Lon-
don's account of his conversation with Butler in or about August or September 1953
is credible; that thenceforth London took such afternoons off with Butler's knowl-
edge and permission; and that Butler did not thereafter warn him to stop the
practice.
What is more, there are additional indications in the record, stemming from un-
disputed testimony, that the justification for the discharge now put forward by But-
ler is no more than an afterthought As a preface to what follows, it may be borne
in mind that London worked for the Respondent for about 4 years; and that dur-
ing that period he received increases totaling 50 percent of his starting salary, the
last increase being given to him only a few months before his dismissal. When
Butler-discharged'L'ondon, the latter asked for an explanation, stating that he did
not- think, it right that he should be discharged "without notice or explanation."
Butler replied, "I cannot tell you why," and when London continued to press for an
explanation, Butler stated, "All I can say is that you thought more about other things
than you did of the paper." London stated that he was not "satisfied with that."
to which Butler replied that if London wanted anything else, he would have to see
Smith. London asserted that he would do so and left. (London's account of this
conversation with Butler is undisputed. When Butler was asked during his exam-
ination whether he recalled what he said to London, he replied; "Not clearly, no,
I don't think so.") Shortly thereafter, that same day, London went to Smith's home
and talked to the publisher. Butler was present. London asked Smith for an ex-
planation for the dismissal, and the latter replied that the reason was that he had
not been satisfied with London's "political reporting." Then, when requested by
London to specify "what reporting," Smith answered, "Oh, well, just generally
speaking." Thereupon London asked Butler why that had not been mentioned to
him during the past 2 weeks, and Butler answered that "there had been a general
deterioration." In response to a complaint by London that he had been dismissed
"without notice, after working on the paper for four years," Smith stated that he
would give London "two weeks' pay instead of notice." London left after some
additional conversation during which he remarked that both he and Smith knew the
"real reason" for the discharge, to which Smith replied, "Well what is it then?"
(London testified that he could not recall what answer he gave to that.) 28
It will be observed that at no point was London told either by Smith or Butler
that he was dismissed because he had taken time off without permission. The
sense of Butler's testimony is that that was the reason for the dismissal; yet Smith
told London that the cause was the latter's "political reporting." Why, it may be
asked, this disparity? This shifting about of reasons bespeaks a search for a pretext
to justify the dismissal and to conceal its real motivation. It is also well to recall
that when London initially asked Butler for a reason for the discharge, the latter
replied, "I cannot tell you why," and later referred London to Smith, thus in
effect telling London that he (Butler) had been forbidden to give London the
reason. Now, why should Butler follow such a course unless it was the Respondent's
purpose to hide from London the real basis for his dismissal? I am impelled to
the conclusion not only, as found above, that London had Butler's permission to
fe London's account of the conversaton at Smith's home is essentially undisputed. Butler
gave no version of the discussion, and about all that appears in Smith's testimony on the
subject is a denial that London told him that he had been "discharged for union activities"
or that the employee asked whether these had been "the cause of the ; discharge." Thetim-
portant point_to bear in mind is that it is undisputed that Smith told London that the
latter's "political reporting" was the cause of the discharge, for this differs from the rea-
son given by Butler in his testimony
i
HERALD PUBLISHING COMPANY OF BELLFLOWER 93
take Thursday afternoons off, but that the justification advanced by Butler for the
dismissal is no more than an afterthought.
One of the Respondent's employees, Oney A. Fleener, had a conversation with
Butler about an hour after London's discharge. Fleener and Butler gave differing
versions of their talk. According to Fleener, he remarked to Butler that London
had told him that he had been discharged because he belonged to the Guild.
Describing Butler's reply, Fleener testified: "Mr. Butler said he (London) was
discharged because he was working for the union instead of working for the news-
paper. That is as near as I can remember although it isn't the exact quotes." From
other testimony Fleener gave, it appears that he construed Butler's statement as
meaning that London had been neglecting his duties by devoting time when he
should have been working to organizational activities . (The question at issue here,
however, is not the interpretation that Fleener placed on Butler's remarks but
what Butler said.) Butler's version of the conversation is that Fleener asked him
whether London had been dismissed and if the "union (had) anything to do with
it"; that he replied, "Well, no, not as to the dismissal"; that Fleener then asked
whether London was "mixed up with the union"; and that he (Butler) said, "I
don't know anything about it other than I had some reports that he was soliciting
membership in the office during the time that he should have been working."
Fleener appeared to me to be , like Sheets , a disinterested witness. While he
initially reflected a disposition to interpret Butler's remarks, rather than to quote
Butler, when the matter was brought into focus by a request that he state what
Butler had said, Fleener gave what is, in my judgment, his best objective recollec-
tion of Butler's language . In contrast , Butler 's testimony , taken as a whole, reflects,
a substantial amount of evasiveness . Apart from my appraisal - of both witnesses,
upon close examination , what Butler told London only about an hour earlier tends
to support Fleener. It will be recalled that Butler told London: "All I can say
is that you thought more of other things than you thought of the newspaper "
Although couched in obscure terms, it is evident that what Butler meant was that
London thought more of union activities ("other things") than he thought of the
newspaper . Such an attitude is closely kindred in spirit to a statement that London
"was discharged because he was working for the union instead of working for 'the
newspaper." In the light of my impression of Fleener , and against the background
of the whole record , including the evasive content of significant portions of Butl`er's
testimony , I find that Butler made a statement to Fleener to that effect 29
If one looks at the record in the whole, the true motivation for London's discharge
appears. Butler's statement to Fleener supports the conclusion that London was dis-
charged because of his adherence to the Guild and his union activities . But there is
far more than that in the record to guide one to decision . From the tenor of Lugoff's
statements to Hickey within a period of about 2 weeks prior to the discharge, it is
evident that the Respondent suspected that the North Long Beach office, London's
place of employment , was a center of union activity , and that the Respondent was
seeking to identify any employee so engaged and to dismiss him. The fact that
29 From the tenor of the Respondent's cross-examination of London, I gather an iinplica-
tion by it that London was discharged because he solicited the membership of other em-
ployees in the Guild during working time It is unnecessary to canvass details of Lon-
don's cross-examination, but several matters may be noted First, the evidence does not
establish that London neglected his duties for organizational work Second, the Respond-
ent had no rule prohibiting discussion by its employees of union matters during working
time. Employees engaged in "social talk" during business hours, and it is obvious that
the Respondent did not prohibit such conversations Plainly, in that setting, it would
be discriminatory to penalize London merely for solicitation of memberships during work-
ing time Third, for the Respondent to claim that London was discharged because lie
devoted working time to organizational activities would he but another shift in its posi-
tion concerning the reason for the dismissal. Butler advanced no such claim. On the
contrary, he testified in effect that he told Fleener that London's discharge was unrelated
to the lattei's union activity Moreover, it is undisputed that Smith told London that
the dismissal was based on the quality of the employee's "political reporting" The Re-
spondent also makes the point that it had a rule prohibiting use of its telephone by em-
ployees for personal business , and that London , who testified that he was unaware of the
rule, used the telephone on a number of occasions to make appointments with other em-
ployees in relation to organizational activities If the Respondent now contends that
London was discharged for violation of the rule, that , too, is a shifting position, and
reflects on the reliability of the claim that London was discharged for lawful cause If
anything is clear , it is that London was not discharged for unauthorized use of the
telephone
I,
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
London was discharged so soon after this expression of the Respondent's attitude and
intention is no mere coincidence. Supporting this conclusion is not only Butler's,
remark to Fleener, but his statement to London only about an hour earlier that
London was being dismissed because he "thought more about other things than . .
of the paper." Standing alone, this statement is obscure, but in the light of the whole
record, I am unable to view it as anything more than a veiled allusion to London's
union activities and to the fact that he was being discharged because of them. What
is more, strong indicia (perhaps the weightiest) of the real motivation for the dis-
charge are to be found in the very fact that the Respondent has endeavored to conceal
it. This policy of concealment is clear in the light of the evidence that Butler refused
to give London an explanation for the discharge, instead referring him to Smith; that
Smith then told London his dismissal was due to the quality of his "political report-
ing"; and that Butler gave a different reason in his testimony, which, I am convinced,
is now advanced post hoc, ergo propter hoc as a pretext for the dismissal. These
tangled justifications, the one given by Smith to London, and the other by Butler at
the hearing, compel the conclusion not only that the Respondent has cloaked the real
motivation for the dismissal, but that the reason was London's adherence to the Guild
and his participation in organizational activities on its behalf. Thus I find that in dis-
charging London, the Respondent violated Section 8 (a) (1) and (3) of the Act.
I also find that Butler's statement to Fleener violated Section 8 (a) (1) of the Act so
D. The discharge of Ross, Hickey, and Farley
Ross entered the Respondent's employ as city editor of the Lakewood edition on or
about March 22, 1954. Butler was his supervisor.
On July 12, 1954, Butler and Ross attended a meeting of the chamber of commerce
in Lakewood. Shortly after they left the meeting, upon their return to the parking
lot where they had left their respective cars, Butler engaged Ross in conversation about
the Guild. Ross had applied for membership in the organization toward the end of
April or the beginning of May, but he had not as yet been notified of his acceptance
at the time Butler spoke to him. On the occasion in question, Butler said to Ross:
"I hope you haven't been sucked into this Guild, have you?" Ross asked Butler,
"Guild-what do you mean?" Butler replied that "it was a newspaper Guild," took a
Guild membership application from his pocket, showed it to Ross, and said, "One of
my boys was approached with this and of course, he brought it to me right away and
I just wondered if you had been connected with it." Ross replied, "No, I guess I am
too new. I guess they do not trust me." Butler then observed that he had always
associated the Guild "with the Leftist movement," and particularly so since a certain
individual had appeared on the picket line during a strike at a newspaper in Hunting-
ton Park. (Ross' account of the conversation is undisputed.)
Butler's characterization of the Guild as "Leftist" did not, of course, violate the Act,
since the managing editor's observation in that regard is protected comment within
the meaning of Section 8 (c). This is not true of what was in effect an inquiry by
Butler of Ross whether the latter was a member of the Guild. The interrogation
should not be viewed in isolated context, for it was part of a pattern of unfair labor
practices during the month of July, reflecting a policy, evidenced by the attempted
surveillance by Murray and Lugoff's statements to Hickey, of prying into the organi-
zational sentiments of the employees and of endeavoring to identify members of the
Guild in order to discharge them. Butler's interrogation of Ross violated Section
8 (a) (1) of the Act.
Tuesday was the busiest day of the week for Ross. His situation in that regard was
not significantly different from that of London. It was Ross' custom to carry his copy
from the Lakewood to the Compton office at one point or another each Tuesday, and
to remain in Compton until his work was completed, usually between 2 and 4 a. in. on
Wednesday.
Ross did not wear a jacket to work on Tuesday, August 17, 1954. His upper outer
garment was a sport shirt of light buff color. Before he left for business that day he
wore a Guild button which was pinned to the upper portion of the pocket located on
30 This conclusion is unaffected by the fact that Fleener construed Butler's statement
as meaning that he had discharged London because the latter had neglected his duties to
engage in union activities Even if one ignores the whole record, one may reasonably con-
strue Butler's statement as meaning that London was dismissed because he was more
devoted to the Union than to the newspaper. Be that as it may, Fleener's construction,
is not controlling on the question of the legality of Butler's statement. One should look to
the words themselves for an appraisal of their legality. In any event, they do not stand
in isolated context, for they follow a pattern of inhibiting expressions by the Respondent's
supervisors on the subject of union activities.
HERALD PUBLISHING COMPANY OF BELLFLOWER 95
the left half of the front of his shirt. Judging by a button of the "same design and
construction" in evidence, the one Ross wore was about an inch in diameter and bore
an insignia and the name "The American Newspaper Guild" in black lettering on a
white field. Ross arrived at the Lakewood office at approximately 10:30 a. in. that
day and wore the button throughout the day at his work. The button was not hidden
from view. This was the first time that Ross wore a Guild button while ar work.
Butler came to the Lakewood office at about 4 or 4.30 p. in. on August 17. Ross
was busy with some work at the time. Butler stood by for about 10 or 15 minutes and
then asked Ross to step into the street. Both men went outside, and there Butler dis-
charged Ross, assigning as the reason that Smith had directed that the payroll be cut
for reasons of economy. Indicating the Guild button,31 Ross replied that both he and
Butler knew that he was being dismissed because he was wearing it. Butler repeated
that he had been told that an economy drive had gone into effect, and said that Ross
could interpret that any way he wished. Ross asked Butler whether he should "finish
out the rest of the edition" (which would require him to work that night and the early
morning hours of Wednesday) and the managing editor said that that was a matter
Ross should discuss with Smith 32
Ross telephoned Smith and asked the latter why he was being discharged
Smith replied that an "economy drive" was under way, stemming from his insistence
3 or 4 weeks earlier "on a retrenchment"; that 3 or 4 persons had been laid off; that
he had directed an additional retrenchment; that that was the reason Ross was being
laid off; that he thought it only fair that Ross "should be let go first" because the
latter "was the newest employee in the department"; and that Ross "would be re-
hired if business warranted it." Ross asked Smith whether he should "finish up
that edition," stating that Butler had told him to take the matter up with Smith. The
latter told Ross to use his own judgment Ross finished his tasks, working, as had
been his custom, into the early hours of Wednesday morning.
On the following Friday or Saturday Ross was paid for the full week, although
he had worked only part of it, and was given an additional week's pay. Ross' salary
at the time of his dismissal was $75 per week. He has never been called back to work
by the Respondent.
Denying that he discharged Ross because the latter engaged in union activities,
Butler testified in substance that he did not notice the union button until Ross directed
his attention to it, as described above. Smith denied that he was aware at the time
of Ross' discharge that the employee had engaged in union activities. Both Smith
and Butler testified in substance that Ross was discharged as part of a program
of reducing staff because of economic considerations. As this is the reason in effect
given by the Respondent for the discharge of Hickey and Farley, repetition in
analysis of evidence will be avoided by setting down some prefatory findings per-
taining to Hickey and Farley prior to a discussion of the claim of economic neces-
sity and of the question of the motivation for the discharge of the three employees.
Hickey entered the Respondent's employ in March 1954. She worked in classi-
fied advertising and was stationed in the Bellflower office. Lugoff was her supervisor.
Brewer hired Farley on June 28, 1954. She was employed as a cashier and PBX
operator in the Bellflower office. Farley does not appear to have had any immediate
supervisor below the rank of Brewer, who at that time was general manager.
Hickey wore a Guild button at work on the afternoon of August 16. Farley
also had such a button in her possession but refrained from wearing it on that date.
There was a union meeting at Hickey's house that night. Farley attended. The
evidence suggests that there was some discussion at the meeting relating to the wear-
ing of Guild buttons, but there is no concrete elaboration of the matter in the rec-
ord. In any event, on August 17, both Hickey and Farley wore their respective
buttons, while at work, throughout the day They were the only employees in
the Bellflower office who did so. The evidence does not establish on what part of
"Ross testified that he pointed to his button, according to Butler, Ross "pulled his
shirt out so as to show it." As the button was not hidden and was worn in view on the
upper left portion of Ross' chest, it does not quite appear why Ross should have to pull
out his shirt "so as to show" the button. In any event, the subsidiary issue of the manner
in which Ross indicated the button need not be resolved, since a resolution either way
would not affect the conclusion reached with respect to the legality of the discharge
a2 Both Butler and Ross described the conversation. Their versions are not in signifi-
cant conflict. In resolving several variances, all of a minor nature, I have adopted the
version which appears to me to be the more probable. For example, Butler testified that
he told Ross to use his own judgment with respect to completion of his work for the day.
However, it is undisputed that Ross called Smith and discussed the matter with the latter.
This tends to corroborate Ross' testimony that Butler referred him to Smith.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her person Hickey wore the button, but it is reasonably inferable from the context
of surrounding circumstances that the button was exposed to view. Farley wore
her button exposed on her belt.
At about 6 p. m. that day, following her daily custom, Hickey telephoned Lugoff,
who was at the Compton office, in order to report her business volume for the day.
Lugoff asked if she would remain at the Bellflower office until he came there, as he
wished to talk to her. She replied that she was unable to do so, but offered to come
to the Compton office later that night. Lugoff told her not to come, stating that
he would see her in the morning.
Lugoff came to the Bellflower office at about 9 a. m on August 18 and spoke to
Hickey who was wearing a Guild button at the time. Farley, who was also wearing
a union button, was in the vicinity, hearing only part of the conversation because she
had duties which required her attention. Lugoff gave Hickey a paycheck covering
her full salary for that week, although she had worked only part of the week, and
told her that Smith had "ordered" her discharged as an economy measure. Hickey
stated that her discharge was due to the fact that she was wearing a Guild button,
and that she was not so "stupid" as to believe the reason given for her dismissal.
Lugoff said that he was sorry that he had to discharge her, that her work had been
satisfactory as far as he was concerned; that "there wasn't any personal feeling"
but "was sorry if [Hickey] was mixed up in the Guild because that [sic] they
would not be able to do anything" for her. Hickey expressed the view that she
could not be discharged because of "Guild activities," and Lugoff replied that he
had "had a situation like that some fifteen years ago" in connection with a Hollywood
newspaper, that "nothing ever came of it," and that "they can't do anything for
you " At one point or another while Lugoff was in the office, Farley told him that
she was wearing a Guild button, and in effect asked him whether he was going to
discharge her also. He replied that he was not her supervisor. After that he asked
Farley to give him a line through the switchboard she operated. Hickey heard him
mention Murray's name on the telephone, and say. "Come over. I am waiting for
you." Murray arrived about 15 or 20 minutes later.33
Murray gave Farley a closing paycheck and stated in effect that she was being
terminated for economic reasons. She replied that she did not believe that that
was the case. Murray then asserted, "If economic measures doesn't hold up, we will
go into the efficiency of your work." 34
In his testimony, Lugoff denied that he discharged Hickey for union activity or that
he noticed her union button prior to her dismissal. He asserted that toward the end
of the week preceding the discharge, Brewer directed him "to cut down one em-
ployee" for reasons of economy; and that he selected Hickey because there had
been friction between them According to Lugoff, the friction stemmed from re-
sentment by Hickey on occasions when he criticized her work.
Brewer testified that it was he who dismissed Farley He denied that he knew
that she was interested in the Guild at the time of the selection, and that her union
activity was the cause of her discharge. He stated that her dismissal was part of a
reduction in force for reasons of economy, and that Farley was selected because
she was junior in point of service to the other PBX operators. Brewer also testified
that the reduction in staff had been under discussion by management officials for
many months; and that either on August 12 or 13 Smith issued a "flat ultimatum"
at a meeting of department heads to reduce the staff by at least 12 employees during
the following week. (Smith testified that he instructed the department heads to re-
duce the staff by "ten to twelve people.")
Putting aside for the time being the question of the motivation for the dismissal
of Ross, Hickey, and Farley, the Respondent's claim that there was a reduction in
force for economic reasons finds support in undisputed testimony by Brewer that the
Respondent laid off six other employees during the week in which Ross, Hickey, and
Farley were dismissed 35 On the other hand, the evidence reflects a number of in-
firmities in the Respondent's position that all of the employees discharged during
the week in question were dismissed solely as the product of an "economy drive."
.,- 33 Hickey's account of her conversation with Lugoit is undisputed Much of it is cor-
• roborated by Farley Lugoff gave no version of the discussion
i Parley's account of her conversation with Murray is undisputed Murray gave no
version of the conversation
ab In addition to naming the six, Brewer intimated that "a lot of them in the back shop"
(employees in mechanical occupations) were laid off, but he stated that he was unable to
give their names and his testimony on the subject is quite vague. It does not affect the
results reached below, but it may be noted that Brewer's allusion to the "back shop',' em-
ployees is too vague to support a finding that there was a reduction in the number of
mechanical employees for economic reasons.
HERALD PUBLISHING COMPANY OF BELLFLOWER' 97
The Respondent produced no records to show the state of its financial- condition
at any time in 1954, and its position with respect to the scope and purpose of the
staff reduction rests principally on the testimony of Brewer and Smith. According
to Brewer, at the meeting of supervisory personnel, Smith left it to each department
head to determine how many should be laid off in his department in order to achieve
compliance with the directive that the staff be reduced by a "minimum of twelve."
(In passing , it may be noted that Brewer could name only nine who were laid off,
and that at a later point in his testimony, the "flat ultimatum" to reduce staff by
a "minimum of twelve" became "a matter of cutting down nine to twelve in the
personnel.") Brewer also testified that at the meeting the department heads had a
discussion "as to which departments were to let so many go." He was then asked
in effect what decision was reached on the subject of "how many were to be let go
in each department," and he replied, "I cannot answer that. The record speaks for
itself . . When the matter was pressed, he described the decision in this language:
"One or more from each department; 1 will put it this way." At another point,
asked whether,he knew at the time he left the meeting how many employees who
were under his "direct supervision" he would have to dismiss, he gave no figure,
avoiding the question, in my judgment, by saying that all personnel were "indirectly"
under his supervision (although he had previously testified that he laid off the indi-
viduals over whom he had "direct supervision"). Both in demeanor and in the text
of his quoted testimony, Brewer was evasive, leaving a substantial doubt with me that
the Respondent's program of reducing the staff was what he described it to be.
This doubt is compounded by the fact that Brewer's account of the decision to reduce
the staff does not quite jibe with testimony given by Butler.
In contrast to Brewer's description of the alleged directive by Smith to reduce the
staff by at least 12 persons, Butler, apparently referring to the same meeting, de-
scribed the decision reached there as a "general conclusion that we would have to
cut the payroll." Asked whether "anything specific" was decided in order to imple-
ment the conclusion, Butler testified: "No, I don't recall that there was anything
definite. I think Mr Smith called me later and said, 'Well, we will just have to do
something about this.' " This also contrasts with a claim by Brewer that Smith
issued a directive at the meeting that each department head reduce his staff by at
least one employee. The sense of Butler's testimony is that it was the telephone
call from Smith which crystallized for him the "general conclusion" reached at the
meeting, and that it was the call which led to Ross ' termination . Brewer's testimony
appears to go off in a different direction, for he stated that Butler acted "after he
talked to me ," testifying , also, "I was the supervisor who, made up the list on the
'instructions of Mr. Smith," thus implying that it was he, Brewer, who decided which
employees should be discharged. (At a subsequent point, Brewer stated that he and
Butler discussed the names of employees to be laid off, buf that Butler "chose the
persons.") Significantly, also, although Lugoff is a department head, in referring
to directions he received to reduce his staff, he mentioned no instructions by Smith
at a meeting. Describing his alleged instructions, Lugoff testified that Brewer told
him of an "economy measure" instituted by Smith, and directed him "to cut down
one employee " The sum of the matter is that descriptions in the record of the set-
ting for the decision to reduce staff take such different directions that one is unable
to reach a definitive conclusion that there was in fact a meeting of department heads
at which Smith issued a "flat ultimatum" to reduce the force by a specified number of
employees for economic reasons alone, with a direction by Smith to each department
head to lay off at least one employee.
.Other features of the record contribute substantially to a doubt that the alleged
program for staff reduction was what the Respondent contends it was. Except for
an assertion by Smith that "profit and loss figures," which he stated he saw in August,
reflected a loss of about $5,400 for the year, the claim of financial necessity rests
on generalizations . 36 According to Smith ,- the Respondent was "losing considerable
money" as far back as March 1954; yet it granted wage increases to almost all the
nonsupervisory editorial employees to a total of $6,500 per year on July 17, only
about a month before Smith allegedly issued the "flat ultimatum." Moreover, in
the light of Smith's testimony that the Respondent was losing a great deal of money
early in the year, it seems strange that the Respondent did not undertake its alleged
"economy drive" much sooner than the middle of August, but, on the contrary, in-
creased its wage bill materially while it was allegedly suffering financial losses. For
39-The General Counsel objected to Smith's testimony concerning the $5,400 figure, pre-
sumably on the ground that the profit and loss statement is the best evidence of its con-
tents The objection came late, that is, after Smith had already testified to the figure, and
I have permitted the testimony to remain
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons already stated , Smith's explanation that the wage increases and the staff re-
duction did not come earlier in the year because he did not participate actively in
the business strikes an implausible note. The sense of Smith 's testimony is that both
the increases and the reduction were the common product of his policy of securing
efficiency by weeding out inefficient employees and paying higher wages to those re-
tained . Yet the evidence falls far short of establishing , at least in any credible
fashion , that such a policy was actually followed . For one thing, as already found,
the purpose of the wage increases was to discourage union activity . For another,
the credible evidence will not support a finding that relative efficiency was a factor in
determining which employees should be laid off.
Putting the cases of Ross, Hickey, and Farley aside , there is no evidence at all
that the Respondent took efficiency into account in selecting for layoff the other six
employees named by Brewer. If Brewer's account of the meeting is credible, each
department head was left to his own devices in deciding how many in his depart-
ment should be laid off, and upon what basis , as long as he dismissed at least one.
So loose a directive strikes one as somewhat odd, for it does not appear to take into
account some definite method of coordinating the personnel needs of the newspaper
or of achieving a specific dollar volume of savings . (For all that appears in the
testimony of Smith , Brewer, and Butler , there was no discussion at the alleged meet-
ing of any specific amount of money to be saved by the reduction in staff .) More-
over, when Ross spoke to Smith, the latter did not tell the employee that he had been
selected on the basis of an appraisal of the relative efficiency of employees. Smith
put the selection on the basis of seniority in the department ( although it may be noted
that another editorial employee, Donald Desfors, whose employment terminated
more than 2 weeks after Ross was dismissed , had less seniority than Ross ). More-
over , notwithstanding Lugoff's claim that he selected Hickey because of friction be-
tween them , there is undisputed testimony that Lugoff complimented Hickey on her
performance in July, and that when he dismissed her about a month later, he ex-
pressed regret for his action , stating that her work had been satisfactory as far as
he was concerned . In the face of this uncontroverted evidence , as well as other cir-
cumstances to be discussed later, I find unpersuasive the claim advanced by Lugoff
now that the quality of Hickey 's performance was a factor in her selection . Another
circumstance which results in a substantial doubt that the program of reducing the
staff was what the Respondent claims it was is the fact that two editorial employees
were hired soon after the reduction in force. One of these, Don (or Carl ) Widener,
was hired on September 2, 1954 , and the other , Earl Griswold , on October 11, 1954.37
(Widener's salary was $5 less, and that of Griswold $5 more, than the weekly wage
paid Ross .) Moreover , on October 21, 1954, the Respondent advertised in its news-
paper that it had an opening in its Lakewood office for a classified advertising solic-
itor (Hickey's occupation ), setting forth inducements in pay and working hours
and requesting applicants to telephone Lugoff. As there is no substantial evidence
that the Respondent 's financial condition was significantly better in October than the
Respondent claims it was in August , one is led to wonder why the Respondent should
seek to employ a classified advertising solicitor so soon after Hickey 's discharge if
she was in fact dismissed as an economy measure. Smith advanced no claim that
the Respondent 's financial position had improved to a point where it warranted the
hiring of another solicitor . He did offer an explanation but his testimony in that re-
gard took an illuminating turn . He explained that "a girl quit in the [Lakewood]
office and we had to replace her." By any reasonable construction this means that
a classified advertising solicitor had quit and that the advertisement sought a re-
placement . 38 Yet the evidence establishes ( see General Counsel 's Exhibit No. 6,
prepared by the Respondent itself ) that Hickey is the only classified advertising
solicitor whose employment was terminated after August 1, 1954 . I am convinced
that Smith became aware at one point of the untenable position in which his testimony
had placed him, for when he was asked to give the name of the employee who had
87 According to Smith, he transferred an editorial employee from North Long Beach
to another office because of unsatisfactory performance and hired Griswold for the North
Long Beach office because Griswold had had considerable experience in working for a com-
peting paper . Be that as it may, the fact is that the hiring of Widener and Griswold
serves to weaken the claim that Smith had issued a directive that at least 12 persons be
laid off for economic reasons.
38 This may be compared with Lugoff 's claim that after Hickey 's discharge , he combined
the Lakewood and Bellflower areas for the purposes of soliciting classified advertising,
transferring the Lakewood solicitor to Bellflower , from which she served both sections,
adding Hickey 's former functions to her Lakewood duties.
HERALD PUBLISHING COMPANY OF BELLFLOWER ` 99
quit, he displayed hostility toward the question, protesting that the "question carried
a string to it so that there could be no answer." When the matter was pressed, still
refraining from giving the name, he conceded, with reluctant demeanor, "that no
classified ad girl quit." At a subsequent point, when asked again for the name, he
stated that the first name of the girl who had left was Marion. In that connection, it
may be noted that the Respondent's records reflect the employment of two persons
bearing the first name Marion, one Marion Mattison, an editorial employee, and the
other Marion Cronk, a cashier and PBX operator; and that, according to an exhibit
(General Counsel's Exhibit No. 6) prepared by the Respondent itself, neither em-
ployee has left the Respondent's employ. Be that as it may, it is testimony such as
Smith gave which militates against acceptance of the Respondent's claim that the
dismissal of Ross, Hickey, and Farley was but part of a program to reduce the staff
solely for economic reasons.
I think it unnecessary to dwell on other factors in the record which, in my
judgment, run counter to a conclusion that the program for staff reduction was all
that the Respondent claims. The fact that some employees,- in addition to Ross,
Hickey, and Farley, were laid off during the week in question might warrant a
belief that there was some program for a staff reduction based on economic reasons,
but upon the basis of the record as a whole, particularly in the light of what has
been said above and the circumstances surrounding the dismissal of Ross, Hickey,
and Farley, I am unable to conclude that the program was in all material respects
what the Respondent claims. Moreover, even if it be assumed that the Respondent
decided, whether at a meeting of department heads or otherwise, to reduce its staff
for reasons of economy, that would not be decisive on the issue of the legality of
the discharge of Ross, Hickey, and Farley, for the question would still remain
whether they were selected for the staff reduction because of their union activities
Turning specifically to the motivation for the Ross discharge, Butler, as in other
phases of his testimony, was evasive on the subject of his knowledge of Ross' mem-
bership in the Guild. Questioned whether he had such knowledge prior to the dis-
charge, Butler testified: "Well, at that time there were all sorts of rumors floating
around. I don't know, other than I heard it some time, previous to that he [Ross]
informed me that he not only was not a member of the union but that he had no
use for the union and did not want to work under union conditions." What Butler
meant by "all sorts of rumors" about Ross' membership in the Guild does not con-
cretely appear, but it was evident to me that his response was guarded and something
less than frank, following the pattern, described earlier, of avoiding commitment
to a fact which might bear adversely on the Respondent's interest. I am also
persuaded, in the light of all surrounding circumstances, that Butler's denial that
he noticed Ross' button before the discharge lacks plausibility. For articles of its
type, the button appears to be substantial in size. It was worn by Ross chest-high and
fully exposed on a shirt of contrasting color. Obviously, the button was readily
visible to Butler during the 10 or 15 minutes he spent in the Lakewood office before
he asked Ross to step into the street. Under these circumstances, I think it
implausible that Butler would not notice the button before he discharged Ross,
particularly if it be borne in mind that Butler had previously interrogated Ross on
the subject of the latter's attitude toward the Guild, an inquiry which was mani-
festly part of a pattern of sensitivity by the Respondent toward participation by its
employees in Guild activities.
The sum of the matter is that the discharge of Ross on the very first day he
wore the button at work was no mere coincidence. The dismissal has the earmarks
of precipitate and hasty action spurred by the fact that Ross wore the button while
at work. The discharge came on a Tuesday, and that day was the busiest of the
week for Ross, so busy that he customarily "worked late into the night, as did
other editorial employees, judging from London's similar custom. Why, it may
be asked, did the Respondent select a point in the middle of the workweek, when
Ross was busiest and had not yet completed his duties in connection with "make-up"
day, to discharge the employee? The evidence yields no satisfactory answer to that
question, unless it is that the Respondent wished to rid itself speedily of Ross because
he had manifested an interest in the Guild. In so doing, the Respondent would
be but carrying out the threat that Lugoff had made to Hickey about a month
earlier to the effect that participation by an employee in Guild activities "would
mean immediate dismissal." The precipitate nature of the discharge, and its under-
lying reason, are illuminated by some evidence relating to Clark who, it will be
recalled, is one of the Respondent's supervisors, and, at the time of Ross' discharge,
had a supervisory status, with the title of manager, in the Lakewood office where Ross
was stationed, although not Ross' supervisor. About a week or two after Ross'
387644-56-vol. 114-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination, Clark discussed the dismissal with Maxine Galt, who was then, but
is no longer, in the Respondent's employ. Clark told Galt that Ross had worn a
union button while at work, and then stated that he had telephoned Smith and told
the latter that he "would not work with any union member," and that he would
quit if Smith did not discharge Ross. (Galt's account of this conversation is undis-
puted. Clark was not produced as a witness.) In view of Clark's status, I take his
remarks to Galt as an admission, imputable to the Respondent, that he did in
fact inform Smith of Ross' manifestation of interest in unionization , and threaten
to quit unless Smith discharged Ross. As Ross wore the button only for 1 day,
one may reasonably conclude that Clark called Smith at some point during the day,
and told Smith of Ross' interest in unionization , and that this led to Butler 's appear-
ance at the Lakewood office toward the end of the day and to Ross' discharge.
Viewing the whole record, I find that the Respondent discharged Ross because
the latter manifested an interest in the Guild ; and that, therefore , the Respondent
violated Section 8 (a) (1) and (3) of the Act.
I also find that the Respondent violated Section 8 (a) (1) of the Act as a result
of Clark's statement to Galt that he had telephoned Smith and told the latter
that he would not work with a union member and would quit if Smith did not
discharge Ross.
Hickey and Farley were, like Ross, discharged soon after they appeared at work
wearing Guild buttons. But this is not the only common denominator of all three
dismissals. Another is that the respective discharges of Hickey and Farley also have
the earmarks of precipitate haste. In that connection, at least in the case of Hickey,
the content and quality of testimony by Lugoff is revealing.
As described earlier, Hickey was discharged on Wednesday morning, August 18.
According to Lugoff's account, he received his instructions from Brewer to reduce
the staff by one employee either on the preceding Friday or Saturday, August 13
or 14. Lugoff also testified that Brewer gave him a "deadline" of 1 week to effect
the cut in staff; that he reached a decision to dismiss Hickey "over the week-end,"
that is, prior to Monday, August 16, that he was in the Bellflower office, where
Hickey was stationed, on Monday; and that he spoke to her on the telephone on
a number of occasions on Tuesday. Thus Lugoff's testimony would make it appear
that, having reached a decision to discharge Hickey, he passed over opportunities
to do so on Monday and Tuesday, waiting practically 2 full workdays before he
made a move to effect the dismissal at almost 6 p. m. on Tuesday ; and that it was
mere coincidence that the dismissal of both Hickey and Farley followed hard upon
the fact that they both wore Guild buttons throughout the day on Tuesday.
Lugoff gave an explanation for the timing of Hickey's dismissal, but the quality of
his testimony in that regard detracts from the force of his explanation . Asserting
at one point that she was paid for the full week, although discharged several days
before the end of the workweek, in order to give her "time to look for another job,"
he later summarized his alleged reasons for the timing of the dismissal as follows:
" .. I wanted to give her a break to look for another job but I did not want to hurt
the company in the meantime. Monday and Tuesday are very busy days and if she
had been let go on Monday , I would have had to put a new girl on that particular
job, which would cut the [advertising] lineage and so forth." I do not rule out, as
improbable, a claim that a firm which had been "losing considerable money" for much
of the year and had just embarked on an "economy drive" would pay an employee
a full' week's wages, upon her dismissal during the middle of the week, in order to
facilitate her search for another position. Business practices in that regard would
obviously depend upon a number of variables. However, there is reason to question
Lugoff's assertion that a motivating factor in the delay in notifying Hickey of her
dismissal was concern' over placing "a new girl" in Hickey's position on "very busy
days." The fact is, as Lugoff conceded at a subsequent point, that Hickey's replace-
ment was not at all "new . . on that particular job." The "new girl" had previous-
ly worked in the Bellflower office before Hickey was hired, performing the very
duties to which Hickey succeeded when she was hired. Upon Hickey's employment,
her predecessor was transferred to another office; and upon Hickey's discharge, ac-
cording to Lugoff, the same girl assumed Hickey's functions in addition to her own.
This combination of duties in the replacement would make for plausibility in Lug-
off's explanation that he deferred discharging Hickey until the "very busy days" had
passed were it not for the course his testimony on the subject took. After- it de-
veloped that the "new girl" was in fact a woman who was then in the Respondent's
employ and had' been 'Hickey's predecessor in the Bellflower office, there was some
shift in emphasis in Lugoff's explanation, for he testified that his primary reason for
'deferring the dismissal for 2 days was because he-"wanted to keep Gloria Hickey on
HERALD PUBLISHING COMPANY, OF BELLFLOWER 101
and give her a break." It was evident to me, upon observation of Lugoff, that at
one point he placed substantial emphasis on his alleged concern over the replace-
ment of Hickey by a "new girl" on 2 busy days, but when further examination de-
veloped that the replacement was actually an old hand , familiar with Hickey 's duties,
he attempted to minimize any adverse effect that that development might have upon
the plausibility of his explanation by shifting away from his expression of concern
over placing a "new girl on that particular job" to primary emphasis upon an ex-
planation that he deferred Hickey's dismissal for 2 days because he "wanted to keep
Gloria Hickey on and give her a break."
But the quality of Lugoff 's testimony concerning the timing of Hickey 's discharge
is not the only reason for rejection of his explanation . In my judgment, it follows
the pattern of afterthought justifications exemplified by Smith's untenable explanation
of the reason for the advertisement of October 21. In the light of the whole record,
a far more plausible explanation for the timing of Hickey's discharge , as well as that
of Farley , is to be found in the conclusion that the Respondent moved expeditiously,
as in the case of Ross, to discharge Hickey and Farley soon after they showed an in-
terest in the Guild by wearing that organization 's buttons . That conclusion is sup-
ported by the undisputed evidence of what occurred on the morning when the women
were discharged . On the very occasion when he dismissed Hickey , Lugoff expressed
regret for his action and stated that her work had been satisfactory as far as he was
concerned . (There is also undisputed evidence that he complimented Hickey for
her work during the previous month .) In the face of this evidence, I am unable to
accord any weight to the claim Lugoff advances now that he selected Hickey for the
reduction in staff because there had been friction between them , nor to another claim
he makes to the effect that, although Hickey's production did not enter into his de-
cision "on a big scale ," it played something of a role because he "figured" that the
friction between them had been "hurting her production ." Moreover, after Lugoff's
initial explanation to Hickey that she was being discharged as an economy measure,
there was practically tacit recognition by him, during later phases of their conversa-
tion, that her dismissal was attributable to her interest in the Guild. Thus, after she
expressed dissent from the reason he gave her and stated that she was being dis-
charged because she was wearing a Guild button, he replied that he was sorry she
"was mixed up in the Guild - because . . . they would not be able to do anything"
for her. When she protested that she could not be discharged for Guild activities,
he recalled that he had been involved in "a situation like that some fifteen years ago"
in connection with another newspaper and that "nothing ever came of it."
The circumstances of Farley's discharge add weight to the conclusion that both
her'dismissal and that of Hickey were no more than the product of a hasty decision
to carry out the policy expressed about a month earlier by Lugoff that participation
by an employee in Guild activities would result in that individual's "immediate dis-
missal.". Lugoff's call to Murray was no more than a part of the setting in which
the former discharged Hickey. Why Lugoff should be "waiting" for Murray is
nowhere explained by the Respondent, but the whole setting suggests a hastily formu-
lated purpose to tie into one package the discharge of the two employees who had
worn Guild buttons in the Bellflower office on the previous day. Murray's testimony
concerning his role in the matter reflects vagueness. It should be borne in mind
that he is a supervisor, with the title of sales manager. Yet according to his account,
he acted as no more than a messenger in delivering Farley's check, coming from
Compton, some 8 miles from Bellflower, to do so. He stated that he-was not
"clear" as to who asked him to deliver the check, and, in that connection, his
testimony took an odd turn at a later point, for when the subject of his recollection
of who gave him the check was raised again, he testified: "Presumably the girl that
types the checks up. It could have been one of the three girls." He also stated that
it was at the request of one of the office girls that he delivered the check. It seems
strange that a supervisor should run an errand for an unidentified office girl, but
stranger yet that he should do so in a situation where, as Murray testified, "a regular
messenger run" was available for delivery of the check, and that it "could have gone
by that method." I believe that Murray was less than frank in his account of his
knowledge of the circumstances of Farley's discharge. Significantly, on that score,
when Farley expressed disbelief that she was being discharged for economic reasons,
he replied, "If economic measures don't hold up, we will go into the efficiency of
your work." This of itself indicates that Murray's role was something more than
to run an errand for some office clerk, but apart from that, it is evident that Murray
was the voice of management, and that when it spoke it evinced a disposition to
search for reasons to cloak an unlawful motivation for Farley's dismissal.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Hickey's discharge, she applied for unemployment compensation to the
California Department of Employment. She filled out a required form which in-
cludes a space for the listing of the reasons for the termination of the applicant's
employment. In the space so provided, she wrote the words, "Economy cut-back"
as the reason. Hickey testified that she told the person who interviewed her at the
State office that the reason given her by the Respondent was "an economic cutback,"
but that she "felt fairly certain" that she had been discharged because she had
joined the Guild. She also testified that she inserted "Economy cut-back" in the
form because she "thought it fair to use" the reason given her by the Respondent.
The Respondent appears to regard the insertion in the form as compelling support
for its position I am unable to agree. It seems to me that it is not unnatural that
an employee, in filling out a required form for her unemployment compensation,
should list as the reason for termination the one given to her by her employer, even
if she disbelieves the reason. In any event, as in other cases of this type,39 one must
appraise the motivation for the discharge on the basis of the whole record. So-
considered, to accord compelling significance to the insertion in the form is to blind
oneself to the substantial evidence in this record that the reason given Hickey for her
discharge was untrue
One other feature of the evidence requires mention. Hickey testified that she
remained in the Bellflower office about 30 minutes after she was given her paycheck,
that after Murray arrived and gave Farley her check, she (Hickey) gave her Guild
button to an employee named Fitzgerald, and that the latter wore it in "plain view"
while Lugoff was in the office. Murray testified that after he delivered the check he
saw 3 employees wearing union buttons, but he later stated that he did not see 3
wearing them at the same time The evidence relating to Fitzgerald is quite frag-
mentary. Murray's testimony does not even identify Fitzgerald by name as one
whom he saw wearing a union button, and Lugoff's evidence contains no reference
to her. The record neither describes Fitzgerald's duties nor identifies her immediate
supervisor. There is no evidence of her employment history either before or after
the discharge of Hickey and Farley 40 Put another way, one is unable to determine
such relevant matters as the length of time Fitzgerald wore the button, whether she
is still employed by the Respondent, whether she was discharged, or, for that matter,
whether she left voluntarily at one point or another. Against that background, I
am unable to view the fact that Fitzgerald wore a union button during a brief period
while Hickey, Farley, Lugoff, and Murray were all together in the office as negating
an inference that Hickey and Farley were discharged because they wore Guild
buttons.
In the light of the evidence as a whole, I find that Hickey and Farley were dis-
charged because they manifested an interest in the Guild, and that by discharging
them, the Respondent violated Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V. THE REMEDY
As it has been found that the Respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designated to effectuate the policies of the Act
As it has been found that the Respondent has interfered with, restrained, and
coerced its employees in the exercise by them of rights guaranteed by Section 7 of
the Act, it will be recommended that the Respondent cease and desist therefrom.
90 See, for example, Western Fishing Lines Company, 103 NLRB 1408, 1463, footnote
52, enfd . 215 F. 2d 453 (C A 9).
40 General Counsel's Exhibit No . 6 lists all editorial employees , cashiers , PBX operators,
and classified advertising solicitors on the Respondent 's payroll after March 1, 1954 Also
listed are all those in such classifications who were terminated after August 1, 1954. Fitz-
gerald appears in neither list From the fact that she is not listed under the caption
"Classified," in the exhibit it is probable that Lugoff was not her supervisor In any event,
as General Counsel's Exhibit No 6 apparently does not set forth all of the Respondent's
personnel classifications , in the absence of evidence establishing Fitzgerald 's classification,
no conclusions can be drawn from the exhibit concerning Fitzgerald 's employment history
after the discharge of Hickey and Farley
HERALD PUBLISHING COMPANY OF BELLFLOWER 103
As it has been found that the Respondent has discriminated in regard to the tenure
of employment of Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey,
it will be recommended that the Respondent offer to them immediate and full rein-
statement to their respective former or substantially equivalent positions 41 without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimination against
them, by payment to each of a sum of money equal to the amount of wages such
employee would have earned from the date of said employee's discharge, as found
above, to the date of a proper offer of reinstatement to such employee. Loss of
pay for each employee shall be computed on the basis of each separate quarter or
portion thereof during the period from the date of discharge of such employee to
the date of a proper offer of reinstatement. The quarterly periods shall begin with
the respective first days of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which the employee normally
would have earned in each such quarter or portion thereof, his or her net earnings,42
if any, in any other employment during that period. Earnings in one quarter shall
have no effect upon the back-pay liability for any other quarter. The Respondent
shall be required, upon reasonable request, to make available to the Board and its
agents all records pertinent to an analysis of the amount due as back pay and to the
offer of reinstatement recommended herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these proceedings, I make the following.
CONCLUSIONS OF LAW
1. American Newspaper Guild, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing employees, as found above, in
the exercise of rights guaranteed them by Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (I) of the Act.
3. By discriminating in regard to the tenure of employment of Sol London, Doris
Farley, Raymond J. Ross, and Gloria Hickey, thereby discouraging membership in
a labor organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.1
41 In accordance with the Board's previous interpretation of the term, the expression
"former or substantially equivalent position" means "former position whenever possible
and if such position is no longer in existence, then to it substantially equivalent position "
See The Chase National Bank of the City of New Fork, San Juan, Puerto Rico, Branch,
65 NLRB 827.
42The construction of "net earnings" in Crossett Lumber Company, 8 NLRB 440, is
applicable here
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in American Newspaper Guild, CIO,
or any other labor organization, by discriminating in any manner in regard to
the hire or tenure of employment, or any term or condition of employment of
any of our employees.
WE WILL offer to said Sol London, Doris Farley, Raymond J. Ross, and
Gloria Hickey immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of pay suffered as a result
of our discrimination against such employees.
WE WILL NOT engage, or attempt to engage, in surveillance of any meeting
of American Newspaper Guild, CIO, or any other labor organization, which
we believe, or have reason to believe, will be attended by any person in our
employ; interrogate our employees concerning their membership in, or activi-
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties on behalf of, American Newspaper Guild, CIO, or any other labor organ-
ization, in a manner constituting interference , restraint , or coercion in violation
of Section 8 (a) (1) of the National Labor Relations Act; state to our em-
ployees that we will discharge any employee because of his affiliation with, or
activities on behalf of , American Newspaper Guild, CIO, or any other labor
organization , or that any employee has been discharged because of any such
affiliation or activity.
WE WILL NOT In any other manner interfere with, restrain , or coerce our
employees in the exercise of their nght to self-organization , to form , join, or
assist any labor organization , to join or assist American Newspaper Guild, CIO,
to bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , and to refrain from any or all of such activities , except to
the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of American News-
paper Guild , CIO, or any other labor organization
HERALD PUBLISHING COMPANY OF BELLFLOWER,
Employer
Dated---------------- By----------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Tung-Sol Electric , Inc. and Triangle Radio Tubes, Inc. and
United Electrical , Radio and Machine Workers of America,
(UE), Local 433 and Local 433, Independent , Petitioners and
International Union of Electrical, Radio & Machine Workers,
CIO and International Brotherhood of Electrical Workers,
AFL. Cases Nos. 2-RC-6817 and 2-RC-6907. September 16,
1955
DECISION AND ORDER DENYING MOTION
Pursuant to the Decision and Direction of Election issued by the
Board on September 29, 1954,1 an election and a runoff election were
conducted in this proceeding. In the runoff election 1,241 votes were
cast for Local 433, Independent, herein called Independent; 893 votes
were cast for International Union of Electrical, Radio & Machine
Workers, CIO, herein called the IUE-CIO; and 29 ballots were chal-
lenged . On November 15, 1954, the IUE-CIO filed timely objections
to conduct affecting the results of the runoff election. On April 1,
1955, following an investigation, the Regional Director issued his
report on objections wherein he found that the IUE-CIO's objections
did not raise substantial or material issues with respect to the conduct
of the election, or to conduct affecting the results of the election. He
therefore recommended that the objections be dismissed and that the
Independent be certified.
I Not reported In printed volumes of Board Decisions and Orders.
114 NLRB No. 22.